McDonald v. Bauman

• Decision Date: 13 November 1967
• Docket Number: No. 44781,44781
• Citation: 433 P.2d 437,199 Kan. 628
• Parties: Cecil McDONALD, Appellant, v. Glen BAUMAN, Appellee.
• Court: Kansas Supreme Court

Page 437

433 P.2d 437

199 Kan. 628

Cecil McDONALD, Appellant, v. Glen BAUMAN, Appellee.

No. 44781.

Supreme Court of Kansas.

Nov. 13, 1967.

Syllabus by the Court

1. K.S.A. 47-646 provides that 'It shall be lawful for any person at any time to kill any dog which may be found injuring or attempting to injure any cattle, hogs or sheep.' On appeal the foregoing provisions are construed, on the facts presented by the record, to mean that a person has a lawful right to shoot, and either injure or kill, a trespassing dog which he finds on his premises injuring or attempting to injure any cattle, hogs or sheep, either at the time the dog is found in the act of depredation, or within a reasonable time thereafter, and he has the right within such reasonable time, if necessary, to pursue such dog after it has left his premises, and to shoot, and either injure or kill, such dog off his premises, provided if in so doing he enters upon another's land, he enters with authority, or under such circumstances that authority to enter such other's land may be implied.

2. In an action for damages, both actual and punitive, wherein the plaintiff sought recovery for the defendant's willful, wanton, malicious and cruel conduct in coming onto the plaintiff's premises, in the plaintiff's absence, and in shooting and wounding plaintiff's dog in the presence of plaintiff's wife without justification or excuse, the jury returned a verdict for the defendant who alleged justification for the shooting of the dog in his answer by reason of the foregoing statute. On appellate review it is held: (a) There was sufficient evidence to support the jury's finding that the defendant was justified in shooting the plaintiff's dog under the foregoing construction of K.S.A. 47-646; (b) the plaintiff's rights were not prejudiced by the instructions given by the trial court; and (c) the trial court did not err in its refusal to give instructions requested by the plaintiff, or in its refusal to admit photographs offered by the plaintiff in evidence.

Tom Crossan, Independence, argued the cause and was on the brief for appellant.

Michael A. Barbara, Topeka, argued the cause and was on the brief for appellee.

SCHROEDER, Justice.

This is an action for damages, both actual and punitive, wherein the plaintiff seeks to recover for the defendant's willful, wanton, malicious and cruel conduct in coming onto the plaintiff's premises, in plaintiff's absence, and in shooting and wounding plaintiff's dog in the presence of plaintiff's wife without justification or excuse and without the acquiescence or condonation of the plaintiff or his wife. The jury, after hearing the case, returned a verdict for the defendant, and the plaintiff has duly perfected an appeal.

The three issues presented on appeal concern: (1) The construction and application of K.S.A. 47-646 to the facts in this case; (2) instructions given by the trial court; and (3) exclusion of evidence.

K.S.A. 47-646 provides:

'It shall be lawful for any person at any time to kill any dog which may be found injuring or attempting to injure any cattle, hogs or sheep.'

On the 8th day of December, 1965, at about 9:00 a. m., Glen Bauman (defendant-appellee) heard hogs squealing in the hog lot on his farm near Neodesha, Kansas. After procuring his .22 caliber rifle he immediately ran to his hog lot and found three dogs attacking and biting his hogs. One was a German Shepherd, another a shall black dog, and the other was a little brown dog.

He shot at the German Shepherd dog. It yelped and the dogs ran out of the lot headed in an easterly direction across the pasture of his neighbor York, where he shot several more times at the dogs. He then ran to his pickup truck, pursued the dogs and intercepted them in the York pasture into which they had run. There he took several more shots at the three dogs.

All three dogs ran onto the property of Cecil McDonald (plaintiff-appellant), but the two smaller dogs ran on across the property, while the German Shepherd stopped.

Bauman did not fire into the McDonald place from the pasture, but after the dogs ran onto the McDonald place he got into his truck, drove onto the road and in the driveway onto the McDonald premises. Mrs. McDonald and her nine-year-old son, Louis, were in the yard. Bauman told Mrs. McDonald that her dog had been involved in killing some hogs, that he shot it and that it was down by a car on their property.

According to Bauman's testimony, 'Mrs. McDonald stated, 'Well, we can't have a dog that will kill your livestock, so go ahead and finish the job."

He then testified he shot the dog and Mrs. McDonald said, "We intended to get rid of the dog anyway." Bauman said he shot the dog twice; that it ran under the house; and before he left he told the McDonald boy to leave the dog alone under the house and let his father look after the dog.

When Bauman first came onto the McConald property the German Shepherd dog was already wounded and blood was squirting out of the side of her neck. The shells used by Bauman were twenty-two shorts and accounted for the fact that they were not powerful enough to kill the dog.

Cecil McDonald (plaintiff-appellant) was away from his home on business until late in the afternoon on the day in question. When he returned home he found his female German Shepherd dog, 'Fraline,' had been shot and was under the house. He helped the dog out from under the house, took her to veterinary clinic and instructed the veterinarian to save the dog. He said to the veterinarian, 'I don't care what it costs, save her.' As a result the dog was treated at the clinic for three or three and one-half weeks where the veterinarian operated on her right hind leg, performing an open reduction of the fracture of the right femur, removing about three and one-half inches of the bone. Medical bills amounted to $59.75 and the future expense of treating the dog was estimated to be $35 to $60.

McDonald testified that he purchased the German Shepherd dog, named 'Fraline,' for $75; that she was eligible for registry but not registered; that she was trained as a watch dog for his used car lots; that he valued the dog at $3,000 or $4,000, and as a result of her injuries she is not worth much as a watch dog. In his petition McDonald sought actual damages in the amount of $2,950.75 and punitive damages in the amount of $5,000. (See, 1 A.L.R.3d 997 for an annotation on 'Measure and Elements of Damages for Killing or Injuring Dog.')

In his pleadings McDonald alleged that he was the owner of the German Shepherd dog, Fraline, and on the day in question the defendant Bauman came to the plaintiff's home uninvited and:

'* * * did then and there willfully, wantonly, cruelly, maliciously, and without justification or excuse therefor, fire a gun at, toward and into the above described dog owned by the plaintiff. That said defendant fired six (6) bullets into said plaintiff's dog, and that said bullets so fired at and into said dog caused numerous wounds to said dog. That all of the bullets pierced the body of said dog causing grievous wounds, injuries and damage to said dog. That said defendant shot said dog six times in the presence of Mrs. Cecil McDonald, the wife of the plaintiff. * * * That at no time had either Mr. and Mrs. Cecil McDonald acquiesced or condoned the shooting of the dog belonging to the said Cecil McDonald.'

In his answer the defendant Bauman alleged that on or about the 8th day of December, 1965, he did:

'* * * shoot a dog apparently belonging to plaintiff herein and that said dog was first shot on defendant's premises in the hog feed lot where it was bothering, worrying and attempting to injure defendant's hogs and further that he shot at the dog as it was leaving the premises and that in pursuit of said wounded dog he followed it to the Cecil McDonald premises where defendant told Mrs. McDonald that he had shot the dog over on defendant's premises in his feed lot and had followed it over to the McDonalds and asked her if she wanted him to finish the job or if she wanted to have Cecil, her husband, do it and she specifically told defendant and directed him to go ahead and finish the job as he had already shot it and then, after being requested to do so, he shot the dog two times and left the McDonald premises. Defendant specifically denies that he shot said dog maliciously and without justification or excuse therefor and further does allege that he acted in good faith and believes that he was fully justified, under the provisions of K.S.A. 47-646, in attempting to protect his property and in the action taken and further that he would have been legally justified in killing said dog free from any liability.'

The appellant first contends the trial court conducted the trial of the case, which resulted in a verdict for the defendant, upon the wrong theory. By instruction No. 4 the trial court instructed:

'Since defendant admits that he shot plaintiff's dog the burden of proof is upon the defendant to show by a preponderance of the evidence that he was justified in shooting it. In this respect you are instructed that it is lawful for any person at any time to kill any dog which may be found injuring or attempting to injure any cattle, hogs or sheep. Therefore, the defendant has the burden of proving by a preponderance of the evidence that he did find plaintiff's dog injuring or attempting to injure defendant's hogs. If you do so find, however, then it is a complete defense to the action and your verdict must be in favor of defendant.'

The appellant contends the trial court instructed, in substance, that if his dog was found by the appellee injuring or attempting to injure appellee's hogs, this fact, in and of itself, operated as a complete defense to the action, regardless of the time which might have elapsed between the injuring or the attempt to injure the hogs and the shooting of the dog. the time which might have elapsed between to State...