Propes v. Griffith

• Decision Date: 02 May 2000
• Citation: 25 S.W.3d 544
• Parties: (Mo.App. W.D. 2000) David and Cindy Propes, Respondents, v. Mark and Sarah Griffith, Appellants. WD57232 0
• Court: Missouri Court of Appeals

25 S.W.3d 544 (Mo.App. W.D. 2000)

David and Cindy Propes, Respondents, v. Mark and Sarah Griffith, Appellants.

WD57232

Missouri Court of Appeals Western District

05/02/2000

Appeal From: Circuit Court of Clay County, Hon. Jane P. Brown

Counsel for Appellant: Michael Murphy

Counsel for Respondent: Mark E. Kelly

Opinion Summary: The Griffiths appeal judgment in favor of the Propes in the Propes' action for damages after the Griffiths had the Propes' two dogs euthanized.

Court holds: Because insufficient evidence existed to prove the dogs were chasing the Griffiths' sheep, section 273.030 (1994) was no defense, and actual and punitive damages were properly awarded.

Harold L. Lowenstein, Judge

FACTS

This appeal arises from a judgment in a court-tried case in favor of respondents David and Cindy Propes, assessing actual damages against appellants Mark and Sarah Griffith, and punitive damages against appellant Sarah Griffith individually. The Propes filed a petition for damages against the Griffiths for killing two dogs belonging to the Propes. At the heart of this suit is section 273.030, RSMo 1994, relied upon as a defense to the Griffith's actions which is now set out.

If any person shall discover any dog or dogs in the act of killing, wounding or chasing sheep in any portion of this state, 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; provided, however, that such dog or dogs shall not be killed in any enclosure belonging to or being in lawful possession of the owner of such dog or dogs.

The Propes and the Griffiths are neighbors who live in rural Clay County about 1.5 miles from each other. The Griffiths live on a 40-acre farm and own several types of livestock, including approximately 15 sheep and a horse. The Propes owned two dogs, a yellow Labrador and a Brittany Spaniel. On the evening of April 29, 1998, Mrs. Griffith slept in her truck in order to keep watch on and protect her sheep and her pregnant horse because the sheep had been attacked the previous night of April 28. Two sheep died as a result of the attack. On the morning of April 30 between 8:00 a.m. and 8:15 a.m., Mrs. Griffith saw two dogs in her sheep pasture, at least one of which she believed was her neighbors' dog. Trial testimony indicated that Mrs. Griffith had never seen the dogs on her property before and that the dogs did not attempt to bite or bark at the sheep. Further, Mrs. Griffith's testimony indicated that the sheep were not "baaing" or running, but rather the sheep were bunched against the gate and she saw a large tail sticking up from the middle of the cluster. There was no evidence of any physical injury to any of the Griffiths' sheep. Mrs. Griffith testified as follows:

I was standing in my horse corral next to the horse barn and looked over towards the pasture in which the sheep were being kept at that time, that the sheep had changed position from my last observation of them, were bunched up against, the sheep that I could see at that point in time were all bunched up against a gate, and there was a large tail sticking up out of them.

...by the time I got, went to the pickup truck and then went to the gate and opened the gate, the sheep were starting to run. That group of sheep that I was watching at the point in time.

At one point, apparently after she got to the pasture where the sheep were standing, she thought the smaller dog, the spaniel, was chasing an ewe and two lambs along a fence. Mrs. Griffith then entered the pen and was able to separate the dogs from the sheep, grab both dogs' collars, and walk them over to the fence. She put the spaniel into her vehicle and tied the lab up in her shop. Mrs. Griffith then called the Clay County Sheriff's Department and within twenty minutes to an hour, two officers arrived. Mrs. Griffith told the officers she was going to have the dogs euthanized and one of the officers requested that instead Mrs. Griffith give the dogs to them and they would take the dogs to Animal Control. After Mrs. Griffith made it clear that she refused to hand the dogs over, she also informed the officers that she believed the lab belonged to the Propes. When the officers realized Mrs. Griffith would not let them handle the situation, they helped load the lab into her vehicle with the spaniel.

Mrs. Griffith then took the dogs some three miles to her local vet, Dr. Mitts, to be euthanized. However, when Dr. Mitts saw the dogs, he indicated that they were not strays, had collars, and that he believed they belonged to the Propes. He refused to euthanize the dogs. Subsequently, Mrs. Griffith returned home, retrieved her wallet, and then drove 45 minutes to the Plattsburg Veterinarian Clinic. In order for this clinic to put the dogs to sleep, Mrs. Griffith was required to, and did, complete an "euthanasia record." In this record, signed by Mrs. Griffith, the language indicated that she was the owner of the two dogs and that neither dog had bitten any person or animal within the past 15 days. Both dogs were then destroyed. At no time during any of these events did Mrs. Griffith contact the Propes to notify them that she had possession of their dogs, or what had occurred.

On May 1, 1998, Respondent Cindy Propes contacted Mrs. Griffith and inquired as to the location of her dogs. Mrs. Griffith refused to identify their location nor did she inform her neighbor that the dogs had been killed. At no time did Mrs. Griffith ever telephone the Propes to inform them that she thought their dogs had chased or attacked her sheep, nor did she make a claim for injuries to the sheep. At no time did the Griffiths make any assertion that the sheep lost on April 28 was a result of these dogs.

The only evidence of the value of the dogs came from respondent, David Propes, who testified they were worth $1000 each, based on their hunting abilities.

On May 7, 1998, a week after the Propes' two dogs were destroyed, the Griffiths' sheep were again attacked in a similar manner to the April 28 attack.

The trial court ordered that Mark and Sarah Griffith were jointly and severally liable for $2000 in actual damages as a result of the plaintiffs' loss of their dogs.¹ Additionally, Mrs. Griffith was individually ordered to pay another $4000 in punitive damages for her outrageous actions that showed reckless indifference for the rights of others, and to deter Mrs. Griffith and others from like conduct in the future.

STANDARD OF REVIEW

"The decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. 1976). When determining the sufficiency of the evidence, an appellate court will accept as true the evidence and inferences from the evidence that are favorable to the trial court's judgment and disregard all contrary evidence. Am. Family Mut. Ins. Co. v. Fehling, 970 S.W.2d 844 (Mo.App. 1998). An appellate court is to "give considerable deference to the evidentiary and factual evaluations by the trial court... However, no such deference is given where the law has been erroneously applied." Estate of Conkle, 982 S.W.2d 312 (Mo.App. 1998). (citations omitted).

POINTS RELIED ON

The Griffiths first contend that the trial court erred in awarding a judgment to the respondents because the appellants had a statutory defense for Mrs. Griffith's action of euthanizing the respondents' two dogs in that she "immediately pursued dogs in the act of chasing sheep" pursuant to section 273.030, RSMo. Again, the pertinent portion of the statute states:

If any person shall discover any...dogs in the act of...chasing sheep in any portion of this state, or shall discover any...dogs under such circumstances as to satisfactorily show that such...dogs...have been recently engaged in killing or chasing sheep...such person is authorized to immediately pursue and kill such...dogs;

Prior to this statute, dogs, as property, were more fully protected. This court recognizes that the current statute, enacted in 1877, was amended in 1899 to include the following additional language: "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." A very early case, Reed v. Goldneck, 86 S.W. 1104, 1105 (Mo. App. 1905), addressed the change and its legislative intent as follows.

[I]t is apparent from the very terms of the statute that it was not the purpose of the Legislature to make the rule more stringent in favor of the dog and against the person charged with the killing thereof, while in a threatening attitude.... It seems clear, when viewed from this standpoint, that we must construe it to mean that it is in part a further act of outlawry against the dog, and that it not only outlaws a sheep-killing dog, but outlaws as well the dog discovered under suspicious circumstances or under circumstances reasonably suspicious.

The Reed case held that the defendant dog killer was statutorily protected when he shot the plaintiff's dog when it came on the defendant's property while fox hunting. While the dog was in an enclosure with 175-180 goats and 25 rabbits, the defendant went into his yard and shot the dog. The defendant testified that the dog was not doing anything particularly harmful, but he shot the dog because he thought the dog "was right in a sheep-killing dog's place"

Although the Reed case dates from the early 1900's, the Griffiths claim that such caselaw and interpretation of RSMo section 273.030 protects the action Mrs. Griffith...