Reed v. Goldneck

• Court: Missouri Court of Appeals
• Writing for the Court: Nortoni
• Citation: Reed v. Goldneck, 86 S.W. 1104, 112 Mo. App. 310 (Mo. App. 1905)
• Decision Date: 02 May 1905
• Parties: REED v. GOLDNECK.

86 S.W. 1104

112 Mo. App. 310

REED v. GOLDNECK.

St. Louis Court of Appeals. Missouri.

May 2, 1905.

ANIMALS—DOGS—CHARACTER AS PROPERTY— RIGHT TO KILL—SHEEP-KILLING DOGS—APPEAL —CONCLUSIVENESS OF FINDING.

1. Dogs are property, and may not rightfully be killed, except for just cause.

2. It must be presumed that the Legislature knows the existing law, and seeks to make some change therein when it enacts a statute.

3. Prior to the enactment of Rev. St. 1899, § 6976, one was not justified in killing a dog, even though it was on his premises, unless it was actually doing injury, or attempting to do injury, and threatening imminent peril to the proprietor's domestic animals.

4. Rev. St. 1899, § 6976, authorizing the killing of dogs discovered in the act of killing, wounding, or chasing sheep, or under such circumstances as to satisfactorily show that they have been recently engaged in killing or chasing sheep or other domestic animals, is an act of outlawry not only against sheep-killing dogs, but against dogs discovered under suspicious circumstances which indicate that they have recently been engaged in killing or chasing sheep or other domestic animals, and authorizes the killing of such dogs, even by another than the owner of the animals killed or injured or supposed to have been killed or injured.

5. In an action for the killing of plaintiff's dog, evidence that defendant and his neighbor had recently lost animals by the ravages of dogs, and that the dog killed was discovered by defendant in the midst of his goats and rabbits in the nighttime, was sufficient to authorize a finding that the dog was or had recently been engaged in killing or chasing sheep or other domestic animals, within the meaning of Rev. St.

1899, § 6976, authorizing the killing of dogs in such cases.

6. The Court of Appeals cannot disturb a finding of the trial court supported by substantial testimony.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action by Sherman Reed against E. M. Goldneck. From a judgment for defendant, rendered on appeal from a justice's judgment for plaintiff, plaintiff appeals. Affirmed.

This case originated before a justice of the peace in Greene county. It involves the killing of a dog, a hound, called "Geronimo." Plaintiff recovered before the justice. Defendant appealed to the circuit court of said county, where the case was tried before the judge without the intervention of a jury. There were no instructions asked, given, or refused. The circuit court, upon hearing the evidence, found the issues for the defendant. Plaintiff appealed to this court.

The evidence tended to show that plaintiff and others were out fox hunting, started a fox about 10:30 o'clock, and shortly after midnight, while the dogs were trailing on defendant's premises near his house and barn, and while inside an inclosure in which he had 175 or 180 goats and some 25 rabbits, defendant arose from his bed, went into the yard, and shot the dog. Defendant's evidence showed that a short time before that he had had 15 goats killed by dogs. Defendant's neighbor testified that he lived about 200 yards from the defendant; that he, too, had recently had some sheep killed by dogs. At the time the dog was shot he was moving away from where the goats were kept, and was in the inclosure where defendant kept the rabbits, and stopped at the goat pen long enough to be shot. Defendant testified: "Q. Then this dog wasn't doing one identical thing to your property when you shot him? A. It was too dark to see what he was doing. Q. You simply shot him because he was on your premises? A. No, I didn't. Q. Why did you shoot him? A. Because I thought he was killing my goats and rabbits. Q. What made you think he was killing them? A. Because he was right in a sheep-killing dog's place." Appellant's counsel argues that the finding of the court below should have been for appellant; that dogs in this state are property, and no one has a right to kill them except for just cause, and says: "They may be killed, however, to protect one's property, but not simply because they are found on such other's land."

O. T. Hamlin, for appellant. G. D. Clark, for respondent.

NORTONI, J. (after stating the facts).

It has long been the settled law that dogs are property in Missouri, and that no one has a right to kill them except for just cause. It has always been the rule, however, that they might be killed for just cause. It has been held that one has no right to kill a dog because it is found on his land, when threatening no immediate danger to his property. Fenton v. Bisel, 80 Mo. App. 135; Gillum v. Sisson, 53 Mo. App. 516; Woolsey v. Haas, 65 Mo. App. 198; Brauer v. English, 21 Mo. App. 490; Carpenter v. Lippitt, 77 Mo. 242. Section 1898 of the Revised Statutes of 1899, defining grand larceny, provides a dog shall be considered as personal property for the purposes of that section. The common law gives a man the right to use such force as is necessary, and no more, to protect his own property, and under this ancient rule, which obtains in...