Bean v. Branson

• Citation: 266 S.W. 743,217 Mo.App. 399
• Parties: WILLIAM BEAN, Respondent, v. HOMER BRANSON, Appellant. *
• Decision Date: 16 December 1924
• Court: Missouri Court of Appeals

266 S.W. 743

217 Mo.App. 399

WILLIAM BEAN, Respondent, v. HOMER BRANSON, Appellant. *

Court of Appeals of Missouri, Springfield

December 16, 1924

Appeal from Circuit Court of Crawford County.--Hon. W. E. Barton Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

A. H Harrison and Harry Clymer, both of Steelville, for appellant.

(1) The peremptory instruction requested by the defendant at the close of all testimony should have been given. It was necessary that there be some evidence showing the act of the defendant was wanton or malicious, before plaintiff was entitled to go to the jury. There was no evidence tending to show any intentional wrongful act done without just cause or excuse, or any willful disregard of the rights of others, and the jury should have been instructed to return a verdict for defendant. Sec. 4249, R. S. 1919; Cookman v. Nill, 81 Mo.App. 297. It cannot be said there was any evidence of spite or ill will; in fact, the testimony is conclusive that plaintiff and defendant were, and always had been, on friendly terms, and that defendant did not know whose dog it was that he shot, and his act in shooting the dog, under the circumstances, could not have been a malicious one. Neither can it be said his act was one of wantonness, because to wantonly do an act is to consciously do it, under circumstances that an ordinarily intelligent person would be conscious of the wrongful nature of the act, and with that knowledge, would do it without reason or excuse, in utter disregard of the rights of others. Alley v. Sample, 194 S.W. 513; Morris v. Mattingly, 204 Mo.App. 669 218 S.W. 923. Defendant was justified under the law irrespective of the statute pleaded as a defense, in killing the dog, and his act in doing so was neither malicious nor wanton. Carpenter v. Lippett, 77 Mo. 242; Fisher v. Badger, 95 Mo.App. 289; Ornburn v. Haley, 225 S.W. 114. (2) Instruction number 1 given for the plaintiff was erroneous. It stated a mere abstract proposition and entirely ignored the defense pleaded in the answer and supported by the testimony. In addition, it gave the jury no guide by which they were to determine whether defendant's act in shooting and killing the dog was wanton or malicious. Brisco et al. v. Laughlin, 161 Mo.App. 76. Instruction number 3 given for the plaintiff should not have been given. This instruction took all the life out of the law, which outlawed sheep killing dogs, or those discovered under such circumstances as to satisfactorily show had recently been engaged in killing or chasing sheep, and deprived the defendant of the rights given him by those statutes. Under the law the defendant had the lawful right to kill the dog when he was discovered on his premises under such circumstances as to satisfactorily show defendant that such dog had been recently engaged in either killing or chasing his sheep. Sec. 4352, R. S. 1919. Defendant had the right to act upon appearances as they existed at the time, and if he did so act in good faith, believing that the dog he shot had been killing or chasing his sheep, he was justified under the statute. The instruction told the jury to pass on defendant's act in the light of all the facts and circumstances in evidence, much of which defendant could not, and did not have any knowledge of until the trial of the case. In other words, the jury was instructed to measure defendant's acts, not by facts as they existed at the time such acts were done, and as the facts appeared to the defendant at the time, but by future developments. The court erred in refusing to give instructions numbers A and B requested by the defendant. Instruction A told the jury, in substance, that if at the time the dog was killed, it was on defendant's premises, and the circumstances were such as to satisfactorily lead defendant to believe such dog had been recently engaged in chasing or killing defendant's sheep, and if defendant had reasonable cause to, and did so believe, then he had the lawful right to kill the dog. Instruction B told the jury that even though they might find the dog killed had not been recently killing or chasing sheep, yet if the jury found that some dog had recently killed or chased defendant's sheep, and that the dog killed was on defendant's premises where the sheep had recently been kept, and was acting under such suspicious circumstances as to reasonably lead defendant to believe that it was the dog that had been killing or chasing the sheep, and that defendant did so believe in good faith, then he had the right to kill the dog. Both of these instructions unquestionably correctly stated the law applicable to this case. Sec. 4352, R. S. 1919; Reed v. Goldneck, 112 Mo.App. 310; Ewalt v. Garnett, 180 Mo.App. 614, 163 S.W. 943; Lale v. Laughlin, 203 S.W. 244. Instruction C requested by the defendant should have been given. If defendant killed the dog in good faith, believing that it had recently been engaged in killing or chasing his sheep then his act was not a malicious or wanton act. To make an act malicious or wanton, it must not only be a wrongful act, but defendant must have known it was wrong when he did it. Trauerman v. Lippincott, 39 Mo.App. 488; Davis v. Railroad, 192 Mo.App. 427. It was error to refuse Instruction D requested by the defendant. Unless defendant knew his act in shooting the dog was a wrongful act, it was not a malicious or wanton act, and he was not liable under the statute upon which this suit was based and upon which plaintiff claimed his right to recover. Davis v. Railroad, 192 Mo.App. 427; Dunham v. Miller, Admr., 154 Mo.App. 320; Leavell v. Leavell, 122 Mo.App. 658.

Frank H. Farris, of Rolla, and E. E. Roberts, of Steelville, for respondents.

(1) Appellant complains that the peremptory instruction at the close of the testimony should have been given; that the evidence failed to show that the act of the defendant was wanton or malicious, and that the evidence did not tend to show any intentional, wrongful act done by the defendant. The statute under which this suit was brought says, "If any person shall maliciously or wantonly destroy live stock," Revised Statutes 1919, sec. 4249. The case of Cookman v. Nill, 81 Mo.App. 297, cited by appellant is not authority. It is in no way a case similar to the one at bar. It presents an entirely different condition and state of affairs. (2) The charge against appellant was that he maliciously or wantonly killed the dog of the plaintiff. Malice is defined to be a wrongful act, done intentionally, without just cause or excuse. Thus, if I maim cattle without knowing whose they are, if I poison a fishery without knowing the owner, I do it of malice, because it is a wrongful act, and done intentionally. 18 R. C. L. 3. (3) We give appellant's pleadings the most liberal construction when we say he undertook to justify and excuse his act upon two grounds: First: His common-law right to kill the dog. Second: His statutory right, as provided by sec. 4352, R. S. 1919. Under the rule of the common law, one was not justified in killing a dog, even though it was on his premises, unless the dog was actually doing injury or attempting injury to his property, or to his person, or is a mad dog, or where the killing is done in the protection of himself, family or property, etc. And the danger from the dog must have been so apparent as to threaten imminent peril. Ornburn v. Haley, 225 S.W. 115; Reed v. Goldneck, 112 Mo.App. 313; Fisher v. Badger, 95 Mo.App. 294. Our statute now, and under which this case must be determined, not only is declaratory of the common law, but has made additions thereto, in that a person is now justified in killing a dog when he is able to show to the reasonable satisfaction of the jury, by facts and circumstances surrounding the killing, that the dog had recently been engaged in killing or chasing sheep or other domestic animals, but a person who kills a dog under the suspicious circumstances mentioned, does so at the risk of paying the owner the value of the dog, or of satisfying the court or jury as the case may be, that he was outlawed under the second clause of the statute. Reed v. Goldneck, 112 Mo.App. 314. Thus, it has been said that dogs are property, and no one may lawfully kill a dog belonging to another, though found on the slayer's premises, except for just cause. But one may kill a dog anywhere except in the owner's enclosure, if discovered in the act of killing, wounding or chasing sheep, or under such circumstances as to satisfactorily show that he had been recently engaged in killing or chasing sheep or other domestic animals. And in an action for shooting plaintiff's dog while on defendant's premises, where the dog was lawfully chasing a fox (or otherwise innocently engaged), whether he was or had just prior to the shooting, been chasing defendant's sheep, is a question for the jury. Rudicile v. Barr, 172 S.W. 430; Evalt v. Garnett, 163 S.W. 943. To justify the killing of the dog, there must have been evidence that the dog was at the time of the killing, chasing defendant's sheep or other domestic animals, or under such circumstances as to satisfactorily show that such dog had been recently engaged in killing or chasing sheep or other domestic animals, and these are questions for the jury to determine under all of the evidence. Lale v. Laughlin, 203 S.W. 244. Appellant's strongest contention, however, is lack of malice, or of wantonness in the act of the defendant; and that the court did not go far enough in its instructions upon the question of malice. The court gave the common and accepted definition of malice, and also the common and ordinarily accepted definition of wantonness. Appellant complains of plaintiff's Instruction No. 3, and says that the question as to whether...