Ewalt v. Garnett

• Decision Date: 03 February 1914
• Citation: 163 S.W. 943,180 Mo. App. 614
• Parties: EWALT v. GARNETT.
• Court: Missouri Court of Appeals

163 S.W. 943

180 Mo. A. 614

EWALT v. GARNETT.

St. Louis Court of Appeals. Missouri.

February 3, 1914.

1. TRIAL (§ 251)—INSTRUCTIONS—PLEADING.

An answer, in an action for damages for killing a dog, alleging that the "dog was chasing" defendant's sheep, and, while he was so chasing them," defendant shot the dog, sufficiently alleged that the dog had been chasing the sheep before it was killed, as well as that it was doing so at that time, to support an instruction that defendant was justified in killing the dog, if he found it under circumstances showing that it had been recently running sheep.

2. APPEAL AND ERROR (§ 1068) — HARMLESS ERROR—INSTRUCTIONS ON DAMAGES.

Any error in instructions on the measure of damages in an action for wrongfully killing a dog was harmless, where the jury found for defendant.

Appeal from Circuit Court, Lewis County; Chas. D. Stewart, Judge.

Action by Robert K. Ewalt against H. B. Garnett. From a judgment for defendant, plaintiff appeals. Affirmed.

C. M. Ewalt, of Canton, for appellant. E. R. McKee, of Memphis, for respondent.

ALLEN, J.

Plaintiff, by his petition filed herein, avers that on May 12, 1910, the defendant unlawfully shot and killed a fox-hound, the property of plaintiff, of the value of $100, for which sum plaintiff prays judgment.

Defendant, by his answer, admits that on the night in question he shot and killed a "hound dog" belonging to plaintiff, but denies that he unlawfully killed the same, or that the dog was of the value of $100, or that plaintiff was damaged in any sum. And, further answering, the defendant alleges that plaintiff's said dog got into an inclosed pasture of defendant, "and was chasing his (defendant's) sheep, * * * and while he was so chasing same, he, defendant, shot and killed it, said hound dog, as he had a lawful right and was authorized and warranted in doing, under and by virtue of section 6976 of the 1899 Revised Statutes of the state of Missouri, which lawful right to shoot and kill said hound dog he pleads in bar of this action."

The cause was tried before the court and a jury, resulting in a verdict for the defendant, and the case is here upon plaintiff's appeal.

It appears that the dog that was killed was a large male foxhound; that on the night in question plaintiff and others were fox-hunting with this dog and a number of other hounds. On behalf of plaintiff, the evidence tended to show that the dogs trailed a fox from adjoining land to and upon the premises of defendant. Plaintiff testified that, while the dogs were thus running on defendant's land, plaintiff, who was then some distance away, heard the report of a firearm. Some days later the dog was found dead upon defendant's premises. There was considerable testimony respecting the value of the dog, which it will be unnecessary to repeat here.

Defendant, as a witness in his own behalf, testified that on the night in question he heard quite a commotion among his sheep in his pasture; that the latter were running, the lambs bleating, and all very much excited; that he made his way to a lot some 50 yards from his house, and that the sheep were running toward this lot with two dogs following them, running and barking; that defendant could not see the dogs, but could hear them running and barking, and that, as they drew nearer, he "shot at the sound," killing one of the dogs.

In rebuttal, there was testimony of witnesses on behalf of plaintiff to the effect that defendant had afterwards admitted that he knew that the dogs were not running the sheep, but were running a fox. Defendant, upon being recalled to the witness stand, denied this, saying that he had stated that the two dogs in question were running the sheep, but that six or eight other dogs "had gone on south and west apparently running a fox." And defendant's version of what was said upon that occasion is corroborated by another witness.

Plaintiff's theory is that the dog that was killed was, at the time, in pursuit of a fox which ran among defendant's sheep for the purpose of eluding his pursuers, as it is said a fox will do; and that neither this dog nor any of the others with him were chasing defendant's sheep. But the only positive testimony with respect to this question is that given by the defendant himself, who alone witnessed the killing, and who says that two of the dogs were pursuing the sheep, while the others had gone off apparently in pursuit of the fox; and that he killed plaintiff's dog after the latter had been chasing his sheep and while it continued to do so.

The assignments of error, however, pertain entirely to the matter of giving and refusing instructions. It will be unnecessary to set out the instructions in full for the reason that, aside from the giving of an instruction for defendant with respect to the measure of...