Brisco v. Laughlin

• Decision Date: 22 January 1912
• Parties: BRISCO et al. v. LAUGHLIN.
• Court: Missouri Court of Appeals

143 S.W. 65

BRISCO et al. v. LAUGHLIN.

Kansas City Court of Appeals. Missouri.

January 22, 1912.

1. TRIAL (§ 199) — INSTRUCTIONS — SUBMITTING QUESTIONS OF LAW.

In an action for the killing of a dog, where defendant answered, alleging that the dog had recently killed sheep and was approaching defendant's sheep when killed, and plaintiff replied, alleging that he had an agreement with defendant whereby his dogs were to be allowed to run at large on defendant's premises, and he was to be liable for double damages for injury they might cause, an instruction, telling the jury that if they believed from the evidence that the killing of the dog was wrongful, and done without good cause, they should find for plaintiff, was error, because submitting to the jury the principal issue of law in the case.

2. TRIAL (§ 296) — INSTRUCTIONS — CURE OF ERRONEOUS INSTRUCTIONS BY OTHERS.

In an action for the wrongful killing of a dog, an erroneous instruction submitting to the jury the question of law as to whether the killing was wrongful was not cured by an instruction charging that if defendant had an arrangement with plaintiff whereby his dogs might run on his premises, and, if they did any damage, plaintiff should pay double the damages, verdict should be for plaintiff.

3. TRIAL (§ 252) — ACTIONS — INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

In an action for the killing of a dog, where the owner claimed that he had an arrangement whereby the dog might run upon defendant's premises, and the evidence only showed that the defendant agreed that the owner might chase wolves on his farm with the dogs, an instruction that, if the owner of the dog had an arrangement whereby his dogs were allowed to run over defendant's farm, verdict should be for the owner, was erroneous, as submitting a false issue.

4. TRIAL (§ 251) — INSTRUCTIONS — SUBJECT-MATTER OF INSTRUCTION.

In an action for the unlawful killing of a dog, where it was not contended that dogs were not property, an instruction that dogs were property under the laws of the state was erroneous, being upon a matter not in issue.

5. APPEAL AND ERROR (§ 1066) — REVIEW — HARMLESS ERROR.

In an action for the killing of a dog, an instruction that dogs were property under the law of the state is not reversible error, though there was no contention that dogs were not such property.

6. WITNESSES (§ 379) — IMPEACHMENT.

In an action for the killing of a dog, where a witness testified that plaintiff's dogs had chased sheep on his land, evidence that the witness had expressed the belief that the dogs had been of value to him at a past time was inadmissible for the purpose of impeachment, because not inconsistent with the witness' present testimony.

Appeal from Circuit Court, Bates County; C. A. Denton, Judge.

Action by Henry Brisco and others against Fred Laughlin. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Silvers & Silvers, for appellant. W. O. Jackson and Silvers & Dawson, for respondents.

BROADDUS, P. J.

This is an action to recover damages for the killing of plaintiffs' dog. The answer of defendant consisted of a general denial, and for further defense as follows: "Further answering, defendant states: That the plaintiffs are the owners of a pack of dogs, of which the dog described in the petition was one, that had for some time prior to the killing of the dog described in the petition been engaged in chasing and killing the sheep of the defendant on his farm in Bates county, Mo. That the dog which was shot was at the time on defendant's farm, and had been recently engaged in chasing and killing sheep belonging to defendant, and at the time it was shot and killed was discovered on defendant's farm aforesaid in close proximity to defendant's sheep on said farm, and was sneaking and crouching toward defendant's ewes kept for breeding purposes, with every indication that it intended to kill some of said sheep, and while thus engaged on defendant's premises, and several miles from the premises of plaintiffs, was killed." The plaintiffs filed a general denial of the allegations of the matter of defense in defendant's answer, and further substantially to the effect that they had prior to the time when the dog was killed made an arrangement or agreement with defendant whereby the dogs of plaintiffs were to be permitted to run at large on defendant's premises, and that, if any damage was done by such dogs while engaged in running at large on defendant's premises, plaintiffs were to pay double damages, and that the defendant was not to kill the dogs of plaintiffs.

The undisputed facts are that the plaintiffs and defendant lived on farms about seven miles distant from one another; that the plaintiffs were the owners of about 15 hounds, among which was the one in controversy; that these dogs...