Rudicile v. Barr

• Decision Date: 05 January 1915
• Docket Number: No. 13762.,13762.
• Citation: 172 S.W. 430
• Parties: RUDICILE v. BARR.
• Court: Missouri Court of Appeals

172 S.W. 430

RUDICILE v. BARR.

No. 13762.

St. Louis Court of Appeals. Missouri.

January 5, 1915.

1. ANIMALS (§§ 2, 96) — DOGS — "PROPERTY" — DEATH.

Dogs are "property," and no one may lawfully kill a dog belonging to another, though found on the slayer's premises, except for just cause.

2. ANIMALS (§ 44) — KILLING DOGS — DEFENES — CHASING SHEEP.

Under the express provisions of Rev. St. 1909, § 856, one may kill a dog not in the owner's inclosure, if discovered in the act of killing, wounding, or chasing sheep, or under such circumstances as to satisfactorily show that the dog had been recently engaged in killing or chasing sheep or other domestic animals.

3. ANIMALS (§ 100) — SHOOTING DOGS — DEFENSES — QUESTION FOR JURY.

In an action for shooting plaintiff's dogs while on defendant's premises, whether the dogs were lawfully chasing a fox, or whether they were, or had just prior to the shooting been, chasing defendant's sheep, held for the jury.

Appeal from Circuit Court, Knox County; Chas. D. Stewart, Judge.

Action by Joseph Rudicile against Merl C. Barr. Judgment for plaintiff, and defendant appeals. Affirmed.

F. H. McCullough, of Edina, for appellant. J. C. Dorian, C. R. Fowler, and F. E. Robinson, all of Edina, for respondent.

ALLEN, J.

Plaintiff sues for the reasonable value of two fox hounds, alleged to have been shot and killed by the defendant while they were chasing a fox through defendant's premises. The answer denies the allegations of the petition, and avers that defendant found the dogs upon his premises, in the act of chasing his sheep, and shot them in order to protect his sheep. There was a verdict and judgment for plaintiff in the sum of $26, and the case is here upon the defendant's appeal.

It is urged that the court should have sustained defendant's demurrer to the evidence; but we think that the court did not err in this regard. Plaintiff's testimony is to the effect that on the morning in question he let these dogs out to hunt; that they started a fox, which they followed in chase in the direction in which defendant's farm lay; that he returned home, and later in the day, having learned that the dogs had been shot, went to see the defendant, and asked him what damage the dogs had done, and why he had shot them, and that defendant said that he did not know that the dogs had done any damage, but that they had scared his sheep; and that defendant further stated that the dogs were "barking on a track" when he shot them. Plaintiff's version of this conversation is very closely corroborated by the testimony of a witness who overheard the same. The testimony of other witnesses for plaintiff, who heard the dogs upon the chase, before and shortly after they entered defendant's pasture, and who heard the shooting, tends to show that the dogs were killed while in close pursuit of a fox, soon after they entered defendant's pasture.

The following notice, signed by defendant and some of his neighbors and published in a local newspaper, was introduced in evidence, viz.:

"Hunters and all parties with dogs are hereby notified to keep off our premises. Further,...