Lawder v. Henderson

• Decision Date: 01 January 1887
• Parties: JOHN LAWDER v. JOHN C. HENDERSON
• Court: Kansas Supreme Court

14 P. 164

36 Kan. 754

JOHN LAWDER v. JOHN C. HENDERSON

Supreme Court of Kansas

January 1, 1887

Error from Wabaunsee District Court.

ACTION by Lawder against Henderson, to recover damages for his two shepherd dogs, which he alleged to have been killed by the defendant, and to have been worth $ 300. The defendant answered by a general denial; and further answering defendant said that if the plaintiff's dogs were killed they were killed not by the defendant nor by his orders, but under the following circumstances:

"About the 25th of June, 1883, in the neighborhood in which the plaintiff and this defendant reside, a large and dangerous dog was attacked with what is commonly called and known as hydrophobia, and went mad, and was at large, running through the neighborhood, attacking and biting cattle, horses and dogs in said neighborhood to such extent that several head of valuable cattle and valuable horses and several dogs, from the effects of said biting, went mad, and said cattle and horses died with the disease known and called hydrophobia that the dogs of the plaintiff were among those bitten by the aforesaid mad dog; that owing to these facts and circumstances there arose among the people of said neighborhood a general and common feeling and belief that there was no security of person or property, and a belief and fear that other dogs that had been bitten would go mad, and among them the plaintiff's; that the plaintiff with others, partaking of this belief and fear, consented to have his said dogs killed; that the said dogs of plaintiff were of no value," etc.

To this answer the plaintiff filed a reply. Trial at the October Term, 1884; verdict and judgment for the defendant. The plaintiff brings the case to this court.

Judgment affirmed.

A. H. Case, for plaintiff in error.

Geo. G. Cornell, for defendant in error.

CLOGSTON C. All the Justices concurring.

OPINION

CLOGSTON, C.:

Appellant presents for our consideration two alleged errors: First, that the court erred in sustaining objections to plaintiff's cross-examination of the defendant; and second, error in the instructions given by the court to the jury. The plaintiff, to establish the fact that he did not consent to the killing of his dogs, proved by one Taylor that on the day plaintiff's dogs were killed, the defendant, with other persons, came to his place to kill his dogs, and that the defendant read a list of the names of the owners whose dogs they had killed, and among which was the plaintiff's name; that the defendant stated that all of the owners had consented to the killing of their dogs save the plaintiff and one other. The defendant, to disprove this statement, testified on his own behalf as follows:

"I am the defendant; I was at the meeting at the school house; I was present on the 25th day of June, 1883, in Mission creek township, near Taylor's house; I heard Taylor's evidence in this case about our being there and what was done and said, and that I read a list of the owners of the dogs whose dogs had been killed. There was no such list read by me; we talked with him about his dogs; told him we wanted to kill all the dogs in the neighborhood, and that was what we were out for; he said he had one dead one and one live one; that some one had just killed one of his."

On cross-examination the plaintiff asked the defendant the following questions:

"Were you at John Lawder's that 25th day of June, 1883? Did you kill any dog of the plaintiff's on that day?

"Were you at John Lawder's place in Mission Creek township on that day? If so, state...