Briscoe v. Laughlin

• Decision Date: 22 January 1912
• Citation: 143 S.W. 65,161 Mo.App. 76
• Parties: HENRY BRISCOE et al., Respondents, v. FRED LAUGHLIN, Appellant
• Court: Kansas Court of Appeals

143 S.W. 65

161 Mo.App. 76

HENRY BRISCOE et al., Respondents, v. FRED LAUGHLIN, Appellant

Court of Appeals of Missouri, Kansas City

January 22, 1912

Appeal from Bates Circuit Court.--Hon. C. A. Denton, Judge.

REVERSED AND REMANDED.

Cause reversed and remanded.

Silvers & Silvers for appellant.

W. O Jackson and Silvers & Dawson for respondents.

OPINION

BROADDUS P. J.

This is an action to recover damages for the killing of plaintiff's 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, Missouri. 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 fifteen hounds, among which was the one in controversy; that these dogs were kept for the purpose of chasing wolves that infested the neighborhood; and that defendant was engaged in raising sheep on his farm. It was shown that the defendant did not kill the dog, but that it was killed by a man in his employ and that he was authorized by defendant to do so, as he had a standing offer to pay $ 2 for every dog that was killed on his farm. It was admitted that defendant gave plaintiffs permission to hunt wolves with dogs on his farm, but the parties differ as to the extent of the permission. The plaintiffs contend that it was part of the agreement that if their dogs did defendant any injury they were to compensate him therefor in double damages. The defendant's contention was that the permission was given for the dogs to chase wolves on his farm only when accompanied by the owners.

According to defendant's evidence, the dog was alone and seemed to be approaching defendant's sheep in such a manner as to indicate that he was going to attack them when he was shot and killed. There was testimony to the effect that some of defendant's sheep had been killed by animals of some kind, and that during the past year plaintiffs' dogs had been running some of defendant's stock, but there was no direct evidence tending to show that they had killed any of his sheep. Some had been killed, but it was not shown whether they had been killed by dogs or wolves. But there is evidence that they had chased the sheep of other persons and would have caught them had they not been interfered with. Defendant offered to show by a witness that he heard dogs in his pasture one night and that on the same night he lost some sheep that had been killed by dogs, upon objection, the offer was excluded.

E Laughlin, defendant's brother, testified that plaintiffs' dogs had chased sheep on his premises. He was asked if at a certain time that he had not expressed the belief that the dogs had been of value to him. He said not. Respondent was called and testified over defendant's objection that he had so expressed himself to him. Some unimportant and irrelevant testimony was offered by defendant and rejected by the court, and other competent evidence not...