Fisher v. Badger

• Decision Date: 09 June 1902
• Citation: 69 S.W. 26,95 Mo.App. 289
• Parties: W. I. FISHER, Respondent, v. A. H. BADGER, Appellant
• Court: Kansas Court of Appeals

69 S.W. 26

95 Mo.App. 289

W. I. FISHER, Respondent, v. A. H. BADGER, Appellant

Court of Appeals of Missouri, Kansas City

June 9, 1902

Appeal from Vernon Circuit Court.--Hon. H. C. Timmonds, Judge.

REVERSED AND REMANDED.

C. G Burton, T. J. Myers and J. E. Harding for appellant.

(1) A dog breaking into a dwelling house in the nighttime, and doing mischief, or attempting to do mischief therein, may be killed by the owner of such dwelling house, and such killing is justified at common law.Wolf v. Chalker,31 Conn. 121;Cooley on Torts (Ed. of 1880), p. 346;Barrington v. Turner,3 Lev. 28;Protheroy v Mathews,24 Eng. Com.LawRep. 465; 1 Hilliard on Torts (3 Ed.), 140, 562, 563.(2) A person has the right to protect his premises and property against the depredation of mischievous dogs, and for that purpose to use such means as are reasonably necessary, even to the killing of the dog.Canefox v. Crenshaw,24 Mo. 199;Brauer v English,21 Mo.App. 491;Fenton v. Bisel,80 Mo.App. 135;Gillum v. Sisson,53 Mo.App. 516;Woolsey v. Haas,65 Mo.App. 198;Cooley on Torts (Ed. of 1880), pp. 346, 347;Brill v. Flager,23 Wend. (N. Y.) 354;Hilliard on Torts (3 Ed.), p. 563;Wolf v. Chalker,31 Conn. 121;Hedges v State, 11 Lea (Tenn.) 528;King v. Kline,6 Pa. 318;Protheroe v. Mathews,24 Eng. Com.LawRep. 465;Parrot v. Hartsfield,32 Am. Dec. 673;Spraight v. McGovern,16 R. I. 658;Barrington v. Turner,3 Lev. 28;Morse v. Nixon,6 Jones 293;Williams v. Dixon,65 N.C. 417;Brown v. Carpenter,62 Am. Dec. 603-4.(3) If defendant had reasonable grounds to believe it was necessary to kill plaintiff's dog to protect his property, he was justified, and whether there was "reasonable grounds" was a question for the jury.King v. Kline,6 Pa. 318;Life v. Blackwelder,25 Ill.App. 673;Simmons v. Holmes,15 L. R. A. 253;Hubbard v. Preston,15 L. R. A. 249;Gillum v. Sisson,53 Mo.App. 516.(4) The word "necessary" when used as above, does not mean "absolutely necessary."It means relatively so.Simmons v. Holmes, 15 L. R. A. 253.

J. B. Journey for respondent.

(1)The court committed no error in refusing defendant's offer of instructions.Because the propositions embraced in these instructions is not the law.(2) Whatever the law may be in other States, in the State of Missouri foxhounds have long since been recognized as property by our courts, and as such are as much entitled to the protection of the law as one's horse or one's cow or any other personal property.State v. Mease,69 Mo.App. 582;Fenton v. Bisel,80 Mo.App. 136;Dudley v. Love,60 Mo.App. 420;Gillum v. Sisson,53 Mo.App. 517;Brauer v. English,21 Mo.App. 490;Carpenter v. Lippitt,77 Mo. 242;Bowers v. Horan,17 L. R. A. 773.(3)Appellant's refused instructions asked the court to declare, as a matter of law, that the appellant had the right to kill the dog in question simply because the dog had entered defendant's premises.This is not the law in this State, and the court rightfully refused to give the proposed instructions.It has been repeatedly held in this State that one has no legal right to kill his neighbor's dog simply because the dog is found trespassing on his premises.Fenton v. Bisel,80 Mo.App. 136;Dudley v. Love,60 Mo.App. 420;Gillum v. Sisson,53 Mo.App. 517;Brauer v. English,21 Mo.App. 490.(4) It has always been the law that one has the right to protect his person and his property, when in immediate danger, even to kill his assailant, whether it be man or beast, but this rule does not apply any more particularly to dogs than it does to man or any other animal.And in applying this rule one must not use any more force or any harsher means than is reasonably necessary to repel the attack.This rule, too, applies more particularly to animate than to inanimate property.Bishop on Non-Contract Law, sec. 943.Johnson v. Patterson,14 Conn. 1;Livermore v. Batchelder,144 Mass. 179.The cases of Gillum v. Sisson,53 Mo.App. 516, andFenton v. Bisel,80 Mo.App. 136, are decisive of every point raised by appellant in this appeal.(4) There is no law in this State requiring the owners of dogs to confine them at their peril.It is true that section 6975andsection 6976, chapter 100,Revised Statutes 1899, does rather enlarge the common-law rights of the owners of sheep or other domestic animals, in protecting them when in actual peril from the savage attack of marauding animals, but this law was not intended to prohibit the trespassing of dogs or any other animal upon another's premises, nor does it give the owners of such premises any greater right to shoot down such trespassing animals, whether it be dogs, horses or cows.

OPINION

BROADDUS, J.

Plaintiff, who was the owner of a foxhound, sued defendant for his value, who was shown to have shot and killed him on the night of the eleventh day of June, 1900.He recovered judgment for twenty dollars, from which defendant appealed.The evidence showed that the dog was a pure English foxhound, and a fine animal.

The defendant relied on the following facts for a defense.It was shown that on the night of the eleventh of June aforesaid, the defendant, who was living on a farm, was aroused from his sleep by his wife, who informed him that there was something in the house.He and his wife were sleeping in a front room, between which and his kitchen, was his dining-room, where his children were sleeping.That when defendant was roused by his wife, he heard a noise in the dining-room; that he got his gun, went outside and around to the kitchen door and said aloud, "come out," at which time the dog jumped through the screen door of the kitchen, and the defendant shot and killed him.He further proved that the screen door, the night before, when he went to bed, was securely closed and in good condition, but that it was torn when the dog came out through the rent, and that the dishes on the table had been disturbed during the night and a crock of milk had been emptied.He offered also to prove that a short time prior to the occurrence mentioned, some crocks of milk had been destroyed in the nighttime, which had been placed upon a back porch of his residence, but the court refused to let such evidence go to the jury.

The defendant asked the court to instruct the jury as follows:

"No. 5.The court instructs the jury that, if you believe from the evidence, that, on the night of the killing, plaintiff's dog, Mark, broke into the house of defendant and injured or destroyed any property therein, and that the defendant killed said dog as he jumped out of said house, then your verdict must be for the defendant.

"No. 6.The court instructs the jury that, if you shall believe from the evidence, that on the night of the killing, plaintiff's dog, Mark, broke into the house of defendant and injured or destroyed any property therein, and that the defendant killed said dog as he jumped out of said house, and that said killing was reasonably necessary for the protection of defendant's property, your verdict must be for the defendant."

Both of said instructions were refused by the court.

The question presented for our consideration is one of law under the facts, whether defendant was justified in killing plaintiff's dog under the circumstances.The action of the defendant in killing plaintiff's dog can not be justified under the statute which authorizes a person to kill a dog that is, or has been, killing or worrying his domestic animals.The law of this State recognizes a dog as property, and no one has the right to wantonly and needlessly kill him.But while so recognized as property, they are not regarded in law as such domestic animals as the horse, the ox, the sheep, and the hog, for the reason that from his very nature he can not be subjected to the same conditions of restraint.If one of the domestic animals escapes from the owner, and goes on the land of a stranger and injures his crops, he may impound it, and demand compensation for his damages.If a dog be found upon one's land, it can not be impounded and it is not a trespass, and the landowner can not kill it unless it is necessary to protect his property.Fenton v. Bisel,80 Mo.App. 135, and cases cited.

By virtue of section 6975,Revised Statutes 1899, "in every case where sheep, or other domestic animals, are killed or maimed by dogs, the owner of such animals may recover against the owner or keeper of such dog or dogs the full amount of damages, and the owner shall forthwith kill such dogs, and for every day he shall refuse or neglect to do so, after notice, he shall pay and forfeit the sum of one dollar, and it shall be lawful for any person to kill such dog or dogs."

Section 6976, idem, provides that, "if any person shall discover any dog or...