Carpenter v. Lippitt

• Decision Date: 30 April 1883
• Citation: 77 Mo. 242
• Parties: CARPENTER v. LIPPITT, Appellant.
• Court: Missouri Supreme Court

77 Mo. 242

CARPENTER

v.LIPPITT, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Linn Circuit Court.--The case was tried before C. BOARDMAN, ESQ., sitting as Special Judge.

REVERSED.

A. W. Mullins for appellant.

H. Lander for respondent.

HENRY, J.

This suit originated in a justice's court, and was for the recovery of double damages for the killing of plaintiff's dog by defendant. From a judgment against him in the justice's court, plaintiff appealed to the circuit court of Linn county, where he obtained a judgment, from which defendant has appealed. At the trial in the circuit court, plaintiff offered evidence of the value of the dog which defendant admitted he killed on his own premises. Defendant then introduced evidence tending to prove that the dog had frequently chased, worried and killed defendant's sheep, on his farm, and that he was killed on defendant's premises. The plaintiff, in rebuttal, introduced evidence tending to prove that his dog had never chased, worried or killed any of defendant's sheep, and had not returned to defendant's premises at the time he was killed, to do any mischief. This was all the evidence offered, except the deposition of one Jno. Burnes, taken and offered by defendant, which the court excluded, which ruling will be hereafter noticed.

For plaintiff the court instructed the jury:

1. That the law recognizes the right of property in dogs; and if the jury find from the evidence that defendant caused the plaintiff's dog to be killed, as complained of, then plaintiff is entitled to recover from defendant the full value of the dog, as shown by the evidence, at the time of the killing, unless the jury should further find from the evidence that the dog was at the time of such killing in the act of running, maiming, injuring or killing defendant's sheep or other domestic animals; or that the dog had, prior to the killing, injured, maimed or killed any such domestic animals of defendant, and that plaintiff had notice thereof before such killing.

2. The mere fact that the dog was on defendant's premises at the time of the killing complained of, will not justify defendant in causing the dog to be killed, but to justify such killing the jury must further believe from the evidence that the dog had prior to that time chased, injured, maimed or killed defendant's sheep or other domestic animals, and that plaintiff had notice thereof; or that the dog was, at the time of such killing, in the act of chasing, injuring, maiming or killing such domestic animals of defendant.

3. Unless the jury find from the evidence that the dog, prior to the time defendant caused him to be killed, had chased, injured, maimed or killed the sheep or other domestic animals of defendant and that plaintiff had notice thereof, or that the dog at the time of the killing was in the act of running, injuring, maiming or killing such domestic animals of defendant, the jury are bound to find their verdict for plaintiff in some amount, even though it may not be greater than nominal damages.

The court of its own motion gave the following instruction:

2. If the jury believe from the evidence that at any time before defendant had plaintiff's dog killed, said dog had destroyed some of defendant's sheep or lambs, and that the dog had returned upon defendant's premises apparently for the purpose of destroying other sheep, although at the time the dog was so killed he was not in the very act of destroying or worrying the sheep, then defendant was justified in killing said dog, and the jury should find their verdict for defendant.

The following asked by defendant were refused:

1. If the jury believe from the evidence that plaintiff's dog had killed, maimed or worried defendant's sheep or any of them before said dog was killed by defendant's directions, then defendant had the right to kill or cause said dog to be killed, and the verdict must be for defendant.

2. If the jury believe from the evidence that at any time before defendant had plaintiff's dog killed, said dog had destroyed some or any one of defendant's sheep or lambs, and that the dog had returned upon defendant's premises apparently for the purpose of destroying or worrying other sheep, although at the time the dog was so killed h...