Frost v. Taylor, 12847

• Decision Date: 24 March 1983
• Docket Number: No. 12847,12847
• Citation: 649 S.W.2d 264
• Parties: Merle FROST, Plaintiff-Respondent, v. Benny TAYLOR and Marshall Taylor, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 264

649 S.W.2d 264

Merle FROST, Plaintiff-Respondent, v. Benny TAYLOR and Marshall Taylor, Defendants-Appellants.

No. 12847.

Missouri Court of Appeals,

Southern District,

Division One.

March 24, 1983.

Peter H. Rea, Branson, for plaintiff-respondent.

Richard T. Martin, Martin & Harned, Gainesville, for defendants-appellants.

TITUS, Judge.

On Armistice Day 1979 plaintiff owned a dog, a 14-month-old white and black spotted Walker bitch named Cindy, when it was shot by defendant Benny Taylor (Benny), the son of defendant Marshall Taylor (Marshall). Plaintiff sued defendants for $2,000 actual and $10,000 punitive damages. The trial court, sans a jury, awarded plaintiff $1,500 actual damages and no punitive damages. Defendants appealed. ¹

As provided by Rule 73.01 ², appellate review of court-tried cases is to be "upon both the law and the evidence as in suits of an equitable nature." This means "that the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is 'against the weight of the evidence' with caution and with a firm belief that the decree or judgment is wrong." Murphy v. Carron, 536 S.W.2d 30, 32[1, 2] (Mo. banc 1976). Also, "Due regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses" because that task rests with the trial court not with the appellate court. Rule 73.01(c)(2); Sedmak v. Charlie's Chevrolet, Inc., 622 S.W.2d 694, 695 (Mo.App.1981). Moreover when, as here, the trial court sits as trier of the facts, it may believe or disbelieve all, part or none of the testimony of any witness. Trenton Trust Co. v. Western Sur. Co., 599 S.W.2d 481, 483 (Mo. banc 1980).

On the day in question plaintiff and defendant Marshall owned Ozark County farms which were separated by "Government land." Defendant Benny, then "about" 15 years old (18 at time of trial), owned 30 sheep in conjunction with a school project which he kept on his father's farm where he then lived with his parents. Near 9:15 p.m. defendant Marshall was asleep on the living room couch when defendant Benny heard dogs barking "where my sheep was at." Defendant Benny went onto the front porch then back into the house and "got a shotgun" before again going from the house. This time defendant Benny saw the sheep "coming toward me running away from a pack of dogs and they were going on like they had been run through" and "I went over towards the sheep." Defendant Benny did not see any dogs, "I just heard them" and "fired three shots towards them" as they were running away from the sheep. Although defendant Benny testified he did not know if any of the shots fired hit a dog, his brief on appeal states "there is no doubt that Benny ... shot the dog that [plaintiff] owned." Defendant Marshall did not awaken or go outside the house until after the shooting had been accomplished.

Plaintiff testified that Cindy and five other dogs were near defendant Marshall's house "running coyotes" when he heard "the shot" but did not see who did the shooting. Although he was on a road and could not see the dogs at the time of the shooting, plaintiff without objection testified that his dogs were "not harming no sheep, they was running the coyote."

In part, § 273.030 provides: "If any person shall discover any dog or dogs in the act of ... chasing sheep ..., or shall discover any dog or dogs under such circumstances as to satisfactorily show that such dog or dogs has or have been recently engaged in ... chasing sheep ..., such person is authorized to immediately pursue and kill such dog or dogs; ...." Defendants rely upon this statute to justify defendant Benny's shooting of Cindy.

Before the just-noted law may furnish succor to defendants, it must be shown that when Cindy was shot she was either "in the act of ... chasing sheep" or had "recently engaged in ... chasing sheep." Defendant Benny did not see any dog or dogs in the act of chasing sheep or any dog or dogs who had recently engaged in chasing sheep. Rather he heard dogs, saw his sheep running from them "like they had been run through," and fired three shots at the dogs as they were running from the sheep. In Missouri dogs are property and no one has a right to kill or harm them except for just cause. Gerhart v. City of St. Louis, 307 Mo. 206, 215, 270 S.W. 680, 682 (1925). Moreover, no one has the right to kill a dog because it is found on his land when threatening no immediate danger to his property. Reed v. Goldneck, 112 Mo.App. 310, 312, 86 S.W. 1104, 1105 (1905).

In the present matter it cannot be said, as asserted by defendants in their first point relied on, that the evidence conclusively established that Cindy and the other dogs were engaged in or had been engaged in chasing sheep when Cindy was shot. Albeit defendant Benny was the only witness to the shooting, plaintiff's testimony and evidence sufficed to justify the trial court's obvious conclusion that the dogs were shot at while in pursuit of a coyote and not because they were...