Granier v. Chagnon

Decision Date10 March 1949
Docket Number8829.
CourtMontana Supreme Court

Appeal from District Court, Twelfth Judicial District, Hill County C. B. Elwell, Judge.

Action by Frank Granier against William Chagnon for damages for wanton and malicious killing of plaintiff's dog. From a judgment for defendant, the plaintiff appeals.

Judgment affirmed.

Jess L. Angstman, of Havre, for appellant.

Burns & Thomas, of Chinook, for respondent.

ADAIR Chief Justice.

Action for damages. Judgment for defendant. Plaintiff appealed.

Jerry V. Waldwinkel was of noble lineage. The blood of five generations of natural hunters coursed his veins. When but ten months old he journeyed west. He settled in the county of Hill county, in the state of Montana.

First he lived in Havre. About the first part of May 1947 he left the noise and bustle of that busy city behind him and went to live at the quiet country home of Ira Holsapple, situate six miles north of Havre, on the Wild Horse Trail. There he made his home until the afternoon of June 8 1947.

During all his days Jerry V. Waldwinkel led a dog's life, for be it remembered, Jerry V. Waldwinkel was a large, dark brown, registered, thorough-bred German short-haired pointer, with a long pedigree and a short tail. His recorded ancestry carried back to one Rap von Schwarenberg, reputed to have been at one time a national field trial champion. Jerry V. Waldwinkel, aged twenty-one months and weighing sixty pounds, spent his first five days at the Holsapple home tethered to a chain in Mr. Holsapple's granary. Thereafter he was released at times and permitted to run at large.

On the Wild Horse Trail, there lived a rancher, L. N. Hamblock, a grower of pure-bred beef and milking Shorthorn cattle. Mr. Hamblock and Mr. Holsapple were neighbors, their respective dwellings being but about two blocks apart.

Shortly after Jerry V. Waldwinkel moved into the neighborhood, Jerry accompanied by a small, short-haired terrier, belonging to one John Landskov, were discovered in Mr. Hamblock's pasture chasing Hamblock's pure-bred cows, then heavy with calf. Such fact Mr. Hamblock promptly reported to Jerry's keeper, Mr. Holsapple, with the warning that he had better keep his dog up or it would be destroyed.

Upon being asked, on the witness stand, to relate what Mr. Hamblock told him, Mr. Holsapple testified: 'There had been some dogs around in the evening, been bothering and chasing this livestock, and on account of that,--then I went to work in the evening,--I used to put Jerry on a chain and chained him in the garage, and he told me that he was going to have to do something about these dogs that were bothering his livestock and that is why Jerry was in the garage on a chain.'

Mr. Hamblock testified: 'The dog, and also the Landskov dog, had been after my cattle in the south pasture, and these cows are pretty expensive cows and they were calving, and they had been chasing the cows and they bunched them up over at the corral and I shot [at] them--shot at the dogs twice, two different times, and I meant to kill them, and I went down and told him he had better keep his dog up, because the next time I was going to kill the dog.

'Q. This Landskov, what kind of a dog was it? A. It was a short-haired dog, weighed about twenty pounds, like a fox terrier something like that; I am not sure.

'Q. And did you see these two dogs chase your cattle? A. I and my wife both saw them.

'Q. How many times, Mr. Hamblock? A. Three times.

'Q. Did you shoot at them with a rifle? A. A twenty-two special.

'Q. And missed them? A. And missed them, yes, sir. * * *

'Q. Did you at any time see this dog ranging out a considerable distance from the Holsapple home? A. Yes, sir, I did.

'Q. How far? A. Three miles.

'Q. What direction? A. It was northwest from the home ranch.

'Q. Was it just the once that you saw him out there? A. No, it was two or three times.

'Q. Was he alone? A. No, the Landskov dog was with him.

'Q. Just the two of them? A. Just the two dogs.'

Leon Chagnon occupied and operated a farm situate four miles distant from the Holsapple home. His two sons,--William, age twenty-nine years, and Paul, somewhat younger,--assisted in operating the farm whereon Chagnon kept a flock of sheep, which he owned, numbering more than two hundred head.

During the latter part of May and the first part of June 1947, the flock was set upon by unidentified marauders and sixteen to eighteen head of Chagnon's sheep were killed.

To protect the flock against further raids and loss, William Chagnon became on the alert for the killers. On June 6th, 1947, he drove the flock to a hill in the Chagnon pasture. There, from a point of vantage on the hilltop, he observed two dogs coming towards the sheep. When about a half mile away the dogs stopped. Apparently they had discovered William's presence for they came no nearer to the sheep that day. At that distance William was neither able to identify the dogs not to obtain an accurate description of them.

Two days later, to wit, on Sunday afternoon, June 8, 1947, at about 2 o'clock, the Chagnon sheep suddenly 'came running off the hill like something was bothering them,' and they 'bunched up' by the Chagnon barn. One sheep had been seriously wounded and injured.

William Chagnon testified: 'I found one that was all tore up. Its face was practically tore off and she was ripped on the belly. She was an old sheep, a ewe.'

Immediately upon observing the commotion among the sheep, William and Paul Chagnon grabbed their guns and, accompanied by Stuart Snyder, hurriedly climbed into an automobile and hastened up the hill in the direction from whence the sheep had come. On reaching the brow of the hill they beheld two dogs in the coulee below. The dogs were in the Chagnon pasture about a quarter of a mile from the Chagnon house and barn. Both dogs were on a freshly killed sheep.

William Chagnon testified: 'They were on their feet and they were tearing at the sheep. They were both busy and they didn't notice us as we first drove up.'

The automobile was stopped about thirty yards short of where the two dogs were so engaged. As the occupants were stepping from the car, they were first noticed by the dogs. Thereupon the dogs turned tail to flee the scene.

One, a large, dark brown dog with a short tail, on leaving the sheep on which he had been working, was shot and killed as he started up the hill.

The other dog, a small, yellow spotted fox terrier, kept along the bottom of the coulee well out of gunshot range, running to the John Landskov home about a half mile distant, closely pursued by the Chagnon brothers and Snyder.

The terrier belonged to Mr. Landskov. When informed of the bloody business in which it had been engaged, Mr. Landskov surrendered the terrier and consented that it be killed, and this was promptly done.

The Chagnon brothers and Snyder thereupon and immediately returned to the sheep on which the dogs had been tearing and chewing. The sheep was found to be a ewe belonging to Leon Chagnon. She had been torn on her side, back, head and neck. Her wounds were fresh. She was then dead, but so recently had she been killed that she was still bleeding and warm.

The large, dark brown dog with a short tail that had been slain was identified as Jerry V. Waldwinkel.

Ira Holsapple, the dog's keeper, testified:

'Q. (By Mr. Angstman) When did you first miss the dog out at the ranch? * * * A. Well, I missed him the morning of the 9th.
'Q. Where did this dog stay out at the ranch where you lived? A. I kept him in a granary on a chain.
'Q. How did he get loose from the chain, if you know? A. I turned him loose Sunday morning, fed him and turned him loose, because I thought as long as I was going to be up there I would turn him loose. I turned him loose and he was around the yard there. That was why I turned him loose.
'Q. Was that on the 8th of June? A. Yes, that was on Sunday; I guess that was on the 8th of June.
'Q. When did you next see the dog? A. Up in that coulee dead.'

This is an action brought by Frank Granier, the owner of Jerry V. Waldwinkel, wherein he seeks to recover from the defendant, William Chagnon, $2,000 damages ($500 actual plus $1,500 exemplary) for the alleged wanton and malicious killing of plaintiff's dog. By answer defendant admitted that he killed the dog, but denied that he acted either wantonly or maliciously, and, as justification, pleaded that he had caught the dog in his father's pasture in the act of chewing and working over a newly killed sheep belonging to defendant's father.

A jury was impaneled to try the case. Various witnesses were sworn and examined. Four witnesses testified on behalf of the plaintiff and five on behalf of the defendant. At the close of all the testimony and after both plaintiff and defendant had rested, plaintiff moved the court for a directed verdict. Before the court had ruled upon such motion, the defendant moved for a directed verdict in his favor. Thereafter neither party either requested or suggested that any question or issue in the case be submitted to the jury. With both motions before it, submitted but undetermined, the trial court then inquired of defendant's counsel, Mr. Burns, and of plaintiff's counsel, Mr. Angstman, if either had anything more to say.

The record of the proceedings at this stage of the trial is as follows:

'The Court: (To Mr. Burns) Have you anything more to say? Or Mr. Angstman, have you anything more to say? Are you still standing on your motion?

'Mr. Angstman: Yes, I still stand on it.

'The Court: You still urge your motion?

'Mr. Angstman: Yes.

'The Court: Well, under those circumstances, according to Montana law, apparently there is...

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