Brauer v. English

• Decision Date: 06 April 1886
• Citation: 21 Mo.App. 490
• Parties: MARTHA J. BRAUER ET AL., Respondents, v. ALBERT M. ENGLISH, Appellant.
• Court: Missouri Court of Appeals

21 Mo.App. 490

MARTHA J. BRAUER ET AL., Respondents,

v.ALBERT M. ENGLISH, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 6, 1886.

APPEAL from the Cape Girardeau County Circuit Court, J. D. FOSTER, Judge.

Reversed and remanded.

R. P. WILSON and R. B. OLIVER, for the appellant: The defendant may show any circumstance in mitigation of the injury done by his trespass; and the defendant having shot the plaintiff's dog while he was worrying the defendant's sheep, this fact, and the habits of the animal, are admissible in evidence for the defendant in the estimation of damages.2 Greenleaf on Evid.(2 Ed.) p. 278, sect. 273;Wells v. Head,4 C. and P. 568;Brown v. Hoburgee,52 Barb. 15;King v. Kline, 6 Barr, 318;Woolf v. Chalker,31 Conn. 121.Waterman on Trespass, sects. 906, 907, and cases cited.

LEWIS, P. J., delivered the opinion of the court.

The plaintiff, Martha J. Brauer(with whom her husband is joined as a co-plaintiff), sued before a justice of the peace for the wrongful and malicious killing of her dog, claiming damages in the sum of fifty dollars.On an appeal to the circuit court, a jury gave her a verdict for the amount claimed.

The defence was, that the dog had been killing some of the defendant's sheep, and was in the act of worrying others when shot by the defendant.The following question, put to the defendant as a witness, was, on the plaintiff's objection, excluded for irrelevancy and incompetency: “State what this dog was doing when you killed him.”This exclusion was error.The defendant had an unquestionable right to show that the killing of the dog was necessary in the protection of his own property, and, of course, he could not do this, if not permitted to prove the circumstances under which the act was done.

The court instructed the jury: “Even though you may believe from the evidence that plaintiff's dog killed or maimed one or more of defendants sheep defendant had no legal right to kill him, unless you shall find from the evidence that defendant, before shooting the dog, notified plaintiff in writing of the fact that he had killed or maimed such sheep, etc.”The instruction makes no exception in favor of a killing done while the dog was in the very act of destroying the defendant's property.It appears to have been given from a totally mistaken view of section seven of “An act to discourage the keeping of useless and sheep-killing dogs, and to provide indemnity for damages done by same,” approved March 19, 1881.(Sess....