Ellis v. Oliphant
| Decision Date | 13 May 1913 |
| Citation | 141 N.W. 415,159 Iowa 514 |
| Parties | ELLIS v. OLIPHANT. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Linn County; F. O. Ellison, Judge.
Action at law, to recover damages for the wrongful killing of plaintiff's dog. Defendant admitted the killing of the dog, but pleaded justification therefor and also filed a counterclaim for sheep killed and injured by the dog. Plaintiff in reply denied the allegations of the counterclaim, and also pleaded an election by plaintiff to recover from the county the damages done his sheep. On the issues joined the case was tried to a jury, resulting in a verdict and judgment for the plaintiff, in the sum of $85, and defendant appeals. Affirmed.Leonard & Johnson, of Cedar Rapids, for appellant.
Voris & Haas, of Marion, for appellee.
Plaintiff is a farmer living in Linn county, Iowa, and defendant is also a farmer and sheep raiser, living about a mile south and west of plaintiff's house. Defendant had another farm about three-fourths of a mile northwest from plaintiff's farm, which was occupied by a tenant, and upon which defendant kept some sheep. During the early morning of January 13, 1911, defendant was awakened by telephone, and informed that some dogs were after his sheep. Arming himself with two guns he started and on his way met his tenant, and the two went to the farm where the sheep were kept, and found several sheep dead and some injured. The dogs had departed, going in a northeasterly direction, and witnesses saw a number of dogs that morning northeast of defendant's farm. These dogs were not identified, save that one witness said they were all dark-colored. Defendant attempted to identify the bark or “yip” of one of the dogs as of one belonging to plaintiff, but this identificationwas incomplete and unsatisfactory. On the day the sheep were killed defendant dragged a carcass of one of the sheep to a ditch in the pasture, where the sheep had been kept, and surrounded it with several traps, and on the second day thereafter plaintiff's collie dog, which was light in color and claimed to be of great value, was caught in one of the traps and thereafter killed by defendant in order to end its misery. It is not claimed that the dog was in the act of chasing, worrying, or injuring sheep at the time he was caught, but it is insisted that his presence there was an indication that he had been one of the group of dogs which did the original damage. Plaintiff learned in some way that defendant had set out traps, and he kept his dog up nights after hearing of the trap setting; but, having let him out in the daytime, the dog was enticed by the bait--so it is claimed--to go to the dead sheep and to get caught in the trap. On February 3, 1911, defendant filed a claim with the board of supervisors for the sheep which had been killed and injured, amounting to $60, and upon this he was allowed the sum of $36. This amount was accepted by him, and he has since retained it. There was testimony, tending to show that plaintiff's dog was a very valuable one, highly trained, and greatly efficient about the farm; some of the witnesses testifying that he was worth at least $200. Such proceedings were had during the trial as to eliminate defendant's claim for damages done his sheep, and the rulings whereby this counterclaim was eliminated are complained of. The trial court instructed, in effect, that defendant had no right, under the circumstances shown, to trap and shoot the dog, and the case was submitted to the jury for it to find the value of the dog and to return a verdict for plaintiff in the amount so found.
[1] I. The trial court instructed that, as the dog was not in the act of worrying or killing sheep, the defendant had no right to trap him or to kill him after being trapped, and in this there was no error. One may not lawfully kill the dog of another, except he be caught in the act of worrying, maiming, or killing sheep, lambs, or domestic animals, or attempting to bite some person. Code Supplement, § 2340; Marshall v. Blackshire, 44 Iowa, 475.
[2] II. There seemed to be no actual market value for dogs in Linn county, Iowa; but plaintiff and others who knew the habits, traits, and character of the dog in question were permitted, over defendant's objections, to testify as to his actual value. In this there was no error. Anson v. Dwight, 18 Iowa, 241;Bowers v. Horen, 93 Mich. 420, 53 N. W. 535, 17 L. R. A. 773, 32 Am. St. Rep. 513;Hodges v. Causey, 77 Miss. 353, 26 South. 945, 48 L. R. A. 95, 78 Am. St. Rep. 525;Gere v. Insurance Co., 67 Iowa, 272, 23 N. W. 137, 25 N. W. 159;Lanning v. Railway Co., 68 Iowa, 502, 27 N. W. 478;Houghtaling v. Railway Co., 117 Iowa, 540, 91 N. W. 811.
[3][4] III. The claim that defendant, having elected to make his claim for damages done his sheep against the county, was barred of any right of recovery against the plaintiff was introduced into the case by an amendment to plaintiff's reply. This defendant moved to strike because filed too late and for other reasons. In so far as the motion attacked the substance of the pleading it was properly overruled, for the legal sufficiency of a pleading cannot, as a rule, be made by motion. Although the reply was not filed in due season, under the Code, still it was within the discretion of the trial court to permit the same to be filed; and there is no showing of any abuse of that discretion. Livingston v. Heck, 122 Iowa, 74, 94 N. W. 1098;Williams Shoe Co. v. Gotzian, 130 Iowa, 710, 107 N. W. 807;Walker v. Pumphrey, 82 Iowa, 487, 48 N. W. 928;Irwin v. Yeager, 74 Iowa, 174, 37 N. W. 136.
[5] IV. The trial court instructed the jury not to allow anything on defendant's counterclaim, and this is argued as error. In this connection defendant's counsel asked the following instruction: “You are instructed if you find from all the evidence that the plaintiff's dog was one of the dogs that took part in the injuring and killing of the sheep of the defendant, on the night of the 13th of January last, then your verdict should be for the defendant, and you should so find.” It is manifest that the instruction asked should not have been given, for it is clearly erroneous. The reason why the trial court took the counterclaim away from the jury is not stated. It may have been because of plaintiff's claim that defendant had elected to get his compensation from the county, or because there was not sufficient testimony to justify a finding that plaintiff's dog, or dogs, had anything to do with the injury to the sheep.
[6] Code...
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