Sims v. Hall

Decision Date23 February 1909
Citation135 Mo. App. 603,117 S.W. 103
PartiesSIMS v. HALL.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Stone County; Jno. T. Moore, Judge.

Action by George E. Hall against Ed. Sims. From a judgment for defendant in the circuit court on appeal from a justice of the peace, plaintiff appeals. Affirmed.

G. Purd Hays and P. M. Viles, for appellant. G. W. Thornberry, for respondent.

REYNOLDS, P. J.

This action was commenced before a justice of the peace, in Stone county, for damages for the value of three foxhounds, alleged to have been killed by the defendant. On verdict and judgment in favor of respondent, plaintiff below, defendant appealed to the circuit court, where, on a new trial, verdict was again rendered in favor of respondent, and the case is here on appeal.

The only assigned error necessary to notice is to the action of the trial court in striking out from an instruction asked by the defendant the words, "or destroying the property of defendant." That instruction is as follows: "The court instructs the jury that if you find and believe from the evidence in this case that the dogs killed by defendant were the dogs of plaintiff, and that at the time the defendant killed said dogs they were chasing sheep or goats (or destroying the property of defendant), or were acting under such suspicious circumstances as to satisfactorily show that such dog or dogs had recently been engaged in chasing or killing sheep or domestic animals (or destroying the property of defendant), then the defendant had a right to kill such dog or dogs, and your verdict will be for defendant." The defendant himself, testifying as a witness, admitted that he had killed dogs, and he testified that those he killed were shot by him while they were coming out of his kitchen or house, but he distinctly testified that the dogs which he had killed were not the dogs of the plaintiff. He was asked this question by his counsel: "They charge you of killing three of Ed. Sims' dogs, foxhounds. State to the jury whether or not you ever killed any of his foxhounds." To this he answered: "No, sir, I never did kill one of his foxhounds." With this testimony given by the defendant himself, there was no evidence before the jury which would have authorized the court to have retained the words stricken out from the instruction asked, and it was not error to strike them out. The failure of any evidence, therefore, to show that the foxhounds of plaintiff which were killed were killed in the act of destroying the property of the defendant, fails to bring this case within the rule laid down in Fisher v. Badger, 95 Mo. App. 289, 69 S. W. 26, and Reed v. Goldneck, 112 Mo. App. 310, 86 S. W. 1104. As to the fact of these dogs being of the kind specified in section 8 of the act providing for the registration, licensing, or killing of dogs, etc., approved April 12, 1907 (Sess. Acts 1907, p. 388), which authorized them to be killed by any person at any time or place, there was evidence both ways, as also evidence as to whether the defendant had killed...

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7 cases
  • The People's Bank v. Stewart
    • United States
    • Missouri Court of Appeals
    • March 9, 1909
  • People's Bank v. Stewart
    • United States
    • Missouri Court of Appeals
    • March 9, 1909
  • Rudicile v. Barr
    • United States
    • Missouri Court of Appeals
    • January 5, 1915
    ... ... the owner of such dog or dogs. Sec. 856, Rev. Stat. of Mo ... 1909; Reed v. Goldneck, 112 Mo.App. 310; Sims v ... Hall, 135 Mo.App. 603; Ewalt v. Garnett, 163 S.W. 943 ...          J. C ... Dorian, C. R. Fowler and F. E. Robinson for ... ...
  • Sims v. Hall
    • United States
    • Missouri Court of Appeals
    • February 23, 1909
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