Lale v. Laughlin

• Decision Date: 29 April 1918
• Docket Number: No. 12631.,12631.
• Citation: 203 S.W. 244
• Parties: LALE et al. v. LAUGHLIN.
• Court: Missouri Court of Appeals

203 S.W. 244

LALE et al. v. LAUGHLIN.

No. 12631.

Kansas City Court of Appeals. Missouri.

April 29, 1918.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

"Not to be officially published."

Action by Chas. E. Late and others against Claude Laughlin. From a judgment of the circuit court, on appeal from a justice court, in favor of defendant, plaintiffs appeal. Affirmed.

Aull & Aull, of Lexington, for appellants. Lyons & Ristine, of Lexington, for respondent.

TRIMBLE, J.

This is an action to recover damages for the killing of plaintiffs' dog, valuable for his domestic qualities and useful in the capturing of "varmints" and furbearing animals. The case originated in a justice court, and went from there on appeal to the circuit court, where, upon a trial, the jury returned a verdict for defendant and plaintiffs have appealed.

The evidence in the case discloses that there is no controversy over the fact that defendant killed plaintiffs' dog by shooting him with a shotgun while the dog was on defendant's farm, though the latter did not know whose dog it was that he shot. The case having been appealed from a justice court, there was no written defensive pleadings, but the defense was conducted upon the theory that the killing was justified under section 856, R. S. Mo. 1909, which provides that:

"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 killing or chasing sheep or other domestic animal or animals, such person is authorized to immediately pursue and kill such dog or dogs."

Plaintiffs had no direct or affirmative evidence as to what the dog was doing at the time he was shot, or the circumstances under which he was killed. They introduced evidence, however, of defendant's conduct and statements after the killing and before the trial, which tended to show that the dog (which Was shown to be a good one not given to disturbing stock of any kind) was not chasing defendant's animals or disturbing them in any way, but that defendant killed him merely because he was on the farm in accordance with his previously published intention of killing any and all dogs found on his farm and not accompanied by their owner or owners.

The only "eyewitness evidence" of the shooting and of the circumstances under which it was done was furnished by the defendant and his 15 year old son. Their testimony was to the effect that a number of dogs were on defendant's farm chasing his young calves; that defendant, on being apprised of this, got his gun and went to where such chasing was still going on and fired one shot into the bunch of dogs, whereupon all of them, except a dog corresponding in size and color to plaintiffs' dog, ran off in a certain direction, while this dog, after following the calves a little further, ran up on a ridge and stopped and looked back. This stop and backward look, as in the case of Lot's wife, proved fatal, for then it was that the defendant fired at him inflicting upon him a wound from which he died after running a short distance.

Complaint is made of defendant's first instruction, which told the jury that:

"If you believe from the evidence that at the time defendant shot at a dog or dogs the said dog or dogs were on the defendant's premises and were engaged in chasing defendant's calves, then the defendant had a right under the laws of this state to shoot and kill said dog or dogs, and your verdict must be for the defendant."

This instruction, considered in connection with the instructions given for plaintiff and in the light of all the evidence in the case, cannot be deemed to be a mere abstract proposition, nor do we think it excluded, by inference or otherwise, plaintiffs' evidence and theory of the case. Plaintiffs' first instruction, in the clearest and most positive terms, told the jury that the law recognized dogs as property and as of value to the owner, and that defendant had no right to kill plaintiffs'...