Ornburn v. Haley

• Decision Date: 08 November 1920
• Docket Number: No. 13550.,13550.
• Citation: 225 S.W. 114
• Parties: ORNBURN v. HALEY.
• Court: Missouri Court of Appeals

225 S.W. 114

ORNBURN v.HALEY.

No. 13550.

Kansas City Court of Appeals. Missouri.

November 8, 1920.

Appeal from Circuit Court, Randolph County; A. W. Walker, Judge.

"Not to be officially published."

Action by Ollie E. Ornburn against James M. Haley.From a judgment for defendant, plaintiff appeals.Affirmed.

Willard P. Cave and James A. Walden, both of Moberly, for appellant.

M. J. Lilly, of Moberly, for respondent.

BLAND, J.

This is an action for damages for the intentional shooting and killing of a high-bred hunting dog.The ownership of the dog was conceded to be in plaintiff, and defendant admitted the killing, but showed in justification the following facts:

Defendant was the owner of thoroughbred White Minorca chickens, which were confined on his premises in Moberly, Mo., and plaintiff lived in the same neighborhood, where he kept his dog.On the morning of April 29, 1919, plaintiff's dog caught one of defendant's hens and went down the street with it.Defendant's wife called him, and told him that there was a dog in the chicken yard, and defendant went to look for the dog.Defendant testified:

"Before I found the dog, it came back with the second chicken, and just as he came out of the yard I shot him."

The dog was shot across the street from plaintiff's house and several feet from the chicken yard.The evidence shows that defendant had been losing chickens, but did not know whose dog had caught them.Some time before the killing of the dog another neighbor's premises were raided, and his chickens caught, by the same dog.Plaintiff settled for those chickens.

Plaintiff contends that there was no justification for the shooting of his dog; that under the common law, in order to justify the killing of a dog, it is necessary to show that the attack upon the chickens was imminent at the time, and that the injury could not otherwise have been prevented; that when the dog was shot it was not in the vicinity of the chickens, nor was it making an attack upon them; that it was unnecessary to kill the dog; that the killing was a wanton destruction of property; that defendant could have erected a better inclosure for his chickens, and requested of the owner that the dog be kept in leash, or have protected his chickens in various other ways.

The common-law rule concerning the killing of a dog for the protection of domestic animals, including fowls, is stated in Reed v. Goldneck, 112 Mo. App. 310, 313, 86 S. W. 1104, 1105, as follows:

"Under the rule of the common law which obtained prior to the statute as announced in the casessupra, one was not justified in killing a dog, even though it was on his premises, unless the dog was actually doing injury or attempting to do injury to his domestic animals, and in the latter case the danger from the dog must have been so apparent as to threaten imminent peril."

See, also, 3 C.J.p. 157.

We think that the defendant showed justification for the killing of the dog, under the common law.The dog had caught a chicken and had returned for a second one.It was asserted in Fisher v. Badger, 95 Mo. App. 289, 295, 69 S. W. 26, 27:

"It is a well-known fact...