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1. Fisher v. Badger, 95 Mo. App. 289


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Emmanuel Ortega
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Fisher v. Badger
Court of Appeals of Missouri, Kansas City
June 9, 1902, Decided
No Number in Original

Reporter
95 Mo. App. 289 *; 69 S.W. 26 **; 1902 Mo. App. LEXIS 41 ***
court refused the instructions, and the jury returned a
W. I. FISHER, Respondent, v. A. H. BADGER,
verdict in favor of the owner. The court was of the
Appellant.
opinion that under the circumstances, the resident was
justified in killing the foxhound for the protection of
Prior History: [***1] Appeal from Vernon Circuit
himself, his family, and his property because it had
Court.--Hon. H. C. Timmonds, Judge.
intruded upon his premises at nighttime.
REVERSED AND REMANDED.
Outcome
Disposition: Reversed and remanded. The court reversed the judgment of the trial court, and
remanded the cause in the owner's action against the
Core Terms resident to recover the value of a certain foxhound.

dog, kill, destroyed, domestic animal, night, thieving, LexisNexis® Headnotes


circumstances, depredations, sheep, door

Case Summary

Procedural Posture Governments > Agriculture & Food > Animal


Defendant resident sought review of a judgment of the Protection
Circuit Court, Vernon County (Missouri), which found in
favor of plaintiff owner in his action to recover the value Real Property Law > Torts > Trespass to Real
of a certain foxhound. Property

Overview Torts > Strict Liability > Harm Caused by


The resident was awakened by his wife, who had heard Animals > General Overview
noises somewhere in the house, after which he got his
Torts > Intentional Torts > Defenses > Defense of
gun, and shouted "come out." The foxhound then
Property
jumped through the screen door of the resident's
kitchen, at which point the resident fired a fatal shot into
Torts > Intentional Torts > Defenses > Defense of
the foxhound. The owner of the foxhound instituted suit
Self & Others
to recover the value thereof, during the trial of which the
resident proved that he had secured the screen door
HN1[ ] Animal Protection
that night before he went to sleep, and that such door
was in good condition. The resident requested certain The law of the State of Missouri recognizes a dog as
jury instructions to have been rendered to the effect that property, and no one has the right to wantonly and
if it was believed from the evidence that the foxhound needlessly kill him. But while so recognized as property,
broke into the resident's house, and injured or destroyed they are not regarded in law as such domestic animals
any property therein, that the "killing was reasonably as the horse, the ox, the sheep, and the hog, for the
necessary for the protection of the resident's property," reason that from his very nature he can not be
and the verdict should have been in his favor. The trial subjected to the same conditions of restraint. If one of

Emmanuel Ortega
Page 2 of 6
95 Mo. App. 289, *289; 69 S.W. 26, **26; 1902 Mo. App. LEXIS 41, ***1

the domestic animals escapes from the owner, and Real Property Law > Torts > Nuisance > General
goes on the land of a stranger and injures his crops, he Overview
may impound it, and demand compensation for his
damages. If a dog be found upon one's land, it can not HN4[ ] Animal Protection
be impounded and it is not a trespass, and the
landowner can not kill it unless it is necessary to protect It is thus seen under what circumstances Mo. Rev. Stat.
his property. § 6976 (1899), authorizes the killing of dogs for
destroying or injuring domestic animals. But in so far as
the same applies to cases where the dog is found
worrying, chasing and killing sheep and other domestic
Governments > Agriculture & Food > Animal
animals, it is but a declaration of the common law, for a
Protection
dog of such a character is a common nuisance.
Torts > Intentional Torts > Defenses > Defense of
Property
Governments > Agriculture & Food > Animal
Torts > Intentional Torts > Defenses > Defense of Protection
Self & Others
Torts > Intentional Torts > Defenses > Defense of
Torts > Strict Liability > Harm Caused by Self & Others
Animals > General Overview
Torts > Strict Liability > Harm Caused by
HN2[ ] Animal Protection Animals > General Overview

See Mo. Rev. Stat. § 6975 (1899). Torts > Intentional Torts > Defenses > Defense of
Property

HN5[ ] Animal Protection


Governments > Agriculture & Food > Animal
Protection
Dogs may commit depredations other than upon
domestic animals, for which they may be killed. If one
Torts > Intentional Torts > Defenses > Defense of
viciously attacks a person, the person may kill him to
Property
protect his person. A mad dog may be killed by any one,
although there be no statute authorizing it. There may
Torts > Intentional Torts > Defenses > Defense of
be many instances in which a dog may be killed, to
Self & Others
protect property outside of Mo. Rev. Stat. § 6976
Torts > Strict Liability > Harm Caused by (1899), and the court unhesitatingly holds, upon
Animals > General Overview principle, that if a man kills the dog of another
necessarily, in the protection of himself, family, or
HN3[ ] Animal Protection property, he is justified in so doing. He has no other
remedy.
See Mo. Rev. Stat. § 6976 (1899).

Torts > Intentional Torts > Defenses > Defense of


Governments > Agriculture & Food > Animal Self & Others
Protection
Torts > ... > Types of Negligence Actions > Animal
Real Property Law > ... > Nuisance > Types of Owners > Scienter
Nuisances > Public Nuisances
Torts > Intentional Torts > Defenses > Defense of
Torts > Strict Liability > Harm Caused by Property
Animals > General Overview
Torts > Strict Liability > Harm Caused by

Emmanuel Ortega
Page 3 of 6
95 Mo. App. 289, *289; 69 S.W. 26, **26; 1902 Mo. App. LEXIS 41, ***1

Animals > General Overview Torts > Strict Liability > Harm Caused by
Animals > General Overview
Torts > ... > Dangerous
Animals > Elements > Scienter HN8[ ] Animal Protection

HN6[ ] Defense of Self & Others A thieving dog is as much a common nuisance as a
sheep-killing dog, and as such is not entitled to the
It would be illogical to hold that a man could not defend protection of the law, for there is no way to avoid his
his home from the intrusion and depredations of dogs. It depredations, except to kill him, unless the owner
is said that, "every man's dwelling is his castle, that knowing his evil propensities, restrains him. But the
even the king may not enter, if forbidden," If the king can court knows that the latter is scarcely ever done, and
not enter against the owner's consent, his dog can not the consequence is there are always more or less
enter. What is the owner to do when he has secured his mischievous animals at large, unrestrained, thieving and
dwelling by closing his door, and finds, on awakening, in committing depredations wherever the opportunity is
the nighttime, that it has been forced and entered by a presented. While it is true that the good and intelligent
thieving dog, and his property stolen or destroyed? He dog, the friend and companion of man, is justly
has no redress against the owner of the dog, even if he considered valuable property, which no one may
knew who such owner is, unless he could bring home to wantonly kill or injure, on the other hand, the vicious and
him the knowledge of its mischievous propensities. If a thieving dog should be held as a common nuisance,
vicious animal breaks into the close of the owner, and is which any person may abate who suffers therefrom.
found destroying property, he may kill him to protect
such property. Every man's dwelling is sacred against Headnotes/Summary
the mischievous intrusions of either man or beast.

Headnotes
Torts > Strict Liability > Harm Caused by
Animals > General Overview 1. Dogs: KILLING OF: PROPERTY. The law of Missouri
recognizes a dog as property, and he may not be
Criminal Law & Procedure > Search & wantonly and needlessly killed.
Seizure > Search Warrants > Scope of Search
Warrants 2. Dogs: KILLING OF: COMMON LAW. Whenever a
dog by his conduct becomes a nuisance, as at common
HN7[ ] An officer of the law can not enter against the law, he may be killed.
consent of the owner, except in cases of felony, unless
such officer is armed with a writ emanating from the 3. Dogs: KILLING OF: PROTECTION OF HOUSE AND
State of Missouri. PROPERTY: FLAGRANTE DELICTO. A man may
protect his house from the intrusion and depredation of
dogs, and it is immaterial that he kills after and not while
the animal was in the act of committing the depredation.
Governments > Agriculture & Food > Animal
Protection 4. Dogs: KILLING OF: PROTECTION OF HOUSE AND
PROPERTY: INSTRUCTION. If one has reasonable
Civil Procedure > ... > Jury Trials > Jury grounds to believe that it is necessary to kill a dog to
Instructions > General Overview protect his property, he is justified in so doing.

Real Property Law > ... > Nuisance > Types of Counsel: C. G. Burton, T. J. Myers and J. E. Harding
Nuisances > Public Nuisances for appellant.

Real Property Law > Torts > Nuisance > General (1) A dog breaking into a dwelling house in the
Overview nighttime, and doing mischief, or attempting to do
mischief therein, may be killed by the owner of such
Torts > ... > Types of Negligence Actions > Animal dwelling house, and such killing is justified at common
Owners > Scienter law. Wolf v. Chalker, 31 Conn. 121; Cooley on Torts

Emmanuel Ortega
Page 4 of 6
95 Mo. App. 289, *289; 69 S.W. 26, **26; 1902 Mo. App. LEXIS 41, ***1

(Ed. of 1880), p. 346; Barrington v. Turner, 3 Lev. 28; Love, 60 Mo. App. 420; Gillum v. Sisson, 53 Mo. App.
Protheroy v. Mathews, 24 Eng. Com. Law Rep. 465; 1 517; Brauer v. English, 21 Mo. App. 490. (4) It has
Hilliard on Torts (3 Ed.), 140, 562, 563. (2) A person has always been the law that one has the right to protect his
the right to protect his premises and property against person and his property, when in immediate danger,
the depredation of mischievous dogs, and for that even to kill his assailant, whether it be man or beast, but
purpose to use such means as are reasonably this rule does not apply any more particularly to dogs
necessary, even to the killing of the dog. Canefox v. than it does to man or any other animal. And in applying
Crenshaw, 24 Mo. 199; Brauer v. English, 21 Mo. App. this rule one must not use any more force or any
491; Fenton v. Bisel, 80 Mo. App. 135; Gillum v. Sisson, harsher means than [***4] is reasonably necessary to
53 Mo. App. 516; Woolsey v. Haas, 65 Mo. App. 198; repel the attack. This rule, too, applies more particularly
Cooley on Torts (Ed. of 1880), pp. 346, 347; Brill v. to animate than to inanimate property. Bishop on Non-
Flager, 23 Wend. (N. Y.) 354; Hilliard on Torts (3 Ed.), Contract Law, sec. 943. Johnson v. Patterson, 14 Conn.
p. 563; Wolf v. Chalker, 31 Conn. 121; Hedges v. State, 1; Livermore v. Batchelder, 144 Mass. 179. The cases
11 Lea (Tenn.) 528; King v. Kline, 6 Pa. 318; Protheroe of Gillum v. Sisson, 53 Mo. App. 516, and Fenton v.
v. Mathews, [***2] 24 Eng. Com. Law Rep. 465; Parrot Bisel, 80 Mo. App. 136, are decisive of every point
v. Hartsfield, 32 Am. Dec. 673; Spraight v. McGovern, raised by appellant in this appeal. (4) There is no law in
16 R. I. 658; Barrington v. Turner, 3 Lev. 28; Morse v. this State requiring the owners of dogs to confine them
Nixon, 6 Jones 293; Williams v. Dixon, 65 N. C. 417; at their peril. It is true that section 6975 and section
Brown v. Carpenter, 62 Am. Dec. 603-4. (3) If defendant 6976, chapter 100, Revised Statutes 1899, does rather
had reasonable grounds to believe it was necessary to enlarge the common-law rights of the owners of sheep
kill plaintiff's dog to protect his property, he was justified, or other domestic animals, in protecting them when in
and whether there was "reasonable grounds" was a actual peril from the savage attack of marauding
question for the jury. King v. Kline, 6 Pa. 318; Life v. animals, but this law was not intended to prohibit the
Blackwelder, 25 Ill. App. 673; Simmons v. Holmes, 15 L. trespassing of dogs or any other animal upon another's
R. A. 253; Hubbard v. Preston, 15 L. R. A. 249; Gillum premises, nor does it give the owners of such premises
v. Sisson, 53 Mo. App. 516. (4) The word "necessary" any greater right to shoot down such trespassing
when used as above, does not mean "absolutely animals, whether it be dogs, horses or cows.
necessary." It means relatively so. Simmons v. Holmes,
15 L. R. A. 253. Judges: BROADDUS, J.

J. B. Journey for respondent. Opinion by: BROADDUS

(1) The court committed no error in refusing defendant's


offer of instructions. Because the propositions embraced Opinion
in these instructions is not the law. (2) Whatever the law
may be in other States, in the State of Missouri
foxhounds have long since been recognized as property [*292] [**26] BROADDUS, J.--Plaintiff, who was the
by our courts, and as such are as much entitled to the owner of a foxhound, sued defendant for his value, who
protection of the law as one's horse or one's cow or any was shown to have shot and killed him on the night of
other personal property. [***3] State v. Mease, 69 Mo. the [***5] eleventh day of June, 1900. He recovered
App. 582; Fenton v. Bisel, 80 Mo. App. 136; Dudley v. judgment for twenty dollars, from which defendant
Love, 60 Mo. App. 420; Gillum v. Sisson, 53 Mo. App. appealed. The evidence showed that the dog was a
517; Brauer v. English, 21 Mo. App. 490; Carpenter v. pure English foxhound, and a fine animal.
Lippitt, 77 Mo. 242; Bowers v. Horan, 17 L. R. A. 773.
(3) Appellant's refused instructions asked the court to The defendant relied on the following facts for a
declare, as a matter of law, that the appellant had the defense. It was shown that on the night of the eleventh
right to kill the dog in question simply because the dog of June aforesaid, the defendant, who was living on a
had entered defendant's premises. This is not the law in farm, was aroused from his sleep by his wife, who
this State, and the court rightfully refused to give the informed him that there was something in the house. He
proposed instructions. It has been repeatedly held in and his wife were sleeping in a front room, between
this State that one has no legal right to kill his neighbor's which and his kitchen, was his dining-room, where his
dog simply because the dog is found trespassing on his children were sleeping. That when defendant was
premises. Fenton v. Bisel, 80 Mo. App. 136; Dudley v. roused by his wife, he heard a noise in the dining-room;

Emmanuel Ortega
Page 5 of 6
95 Mo. App. 289, *292; 69 S.W. 26, **26; 1902 Mo. App. LEXIS 41, ***5

that he got his gun, went outside and around to the be impounded and it is not a trespass, and the
kitchen door and said aloud, "come out," at which time landowner can not kill it unless it is necessary to protect
the dog jumped through the screen door of the kitchen, his property. Fenton v. Bisel, 80 Mo. App. 135, and
and the defendant shot and killed him. He further proved cases cited.
that the screen door, the night before, when he went to
bed, was securely closed and in good condition, but that By virtue of section 6975, Revised Statutes 1899, HN2[
it was torn when the dog came out through the rent, and ] "in every case where sheep, or other domestic
that the dishes on the table had been disturbed during animals, [*294] are killed or maimed by dogs, the
the night and a crock of milk had been emptied. He owner of such animals may recover against the [***8]
offered also to prove that a short time prior to [***6] the owner or keeper of such dog or dogs the full amount of
occurrence mentioned, some crocks of milk had been damages, and the owner shall forthwith kill such dogs,
destroyed in the nighttime, which had been placed upon and for every day he shall refuse or neglect to do so,
a back porch of his residence, but the court refused to after notice, he shall pay and forfeit the sum of one
let such evidence go to the jury. dollar, and it shall be lawful for any person to kill such
dog or dogs."
The defendant asked the court to instruct the jury as
follows: Section 6976, idem, provides that, HN3[ ] "if any
person shall discover any dog or dogs in the act of
"No. 5. The court instructs the jury that, if you believe killing, wounding or chasing sheep . . . or shall discover
from the evidence, that, on the night of the killing, any dog or dogs under such circumstances as to
[*293] plaintiff's dog, Mark, broke into the house of satisfactorily show that such dog or dogs have been
defendant and injured or destroyed any property therein, recently engaged in killing or chasing sheep, or other
and that the defendant killed said dog as he jumped out domestic animals, such person is authorized to
of said house, then your verdict must be for the immediately pursue and kill such dog or dogs."
defendant.
HN4[ ] It will thus be seen under what circumstances
"No. 6. The court instructs the jury that, if you shall the statute authorizes the killing of dogs for destroying
believe from the evidence, that on the night of the killing, or injuring domestic animals. But in so far as the same
plaintiff's dog, Mark, broke into the house of defendant applies to cases where the dog is found worrying,
and injured or destroyed any property therein, and that chasing and killing sheep and other domestic animals, it
the defendant killed said dog as he jumped out of said is but a declaration of the common law, for a dog of
house, and that said killing was reasonably necessary [**27] such a character is a common nuisance. But
for the protection of defendant's property, your verdict HN5[ ] dogs may commit depredations other than
must be for the defendant." upon domestic animals, for which they may be killed. If
one viciously attacks a person, the [***9] person may
Both of said instructions were refused by the court. kill him to protect his person. A mad dog may be killed
by any one, although there be no statute authorizing it.
The question presented for our consideration is one of See Bouvier's Dic., 442, and cases cited. There may be
law under the facts, whether defendant was justified many instances in which a dog may be killed, to protect
in [***7] killing plaintiff's dog under the circumstances. property outside of the statute, and we unhesitatingly
The action of the defendant in killing plaintiff's dog can hold, upon principle, that if a man kills the dog of
not be justified under the statute which authorizes a another necessarily, in the protection of himself, family,
person to kill a dog that is, or has been, killing or or property, he is justified in so doing. He has no other
worrying his domestic animals. HN1[ ] The law of this remedy.
State recognizes a dog as property, and no one has the
right to wantonly and needlessly kill him. But while so HN6[ ] It would be illogical to hold that a man could not
recognized as property, they are not regarded in law as defend his home from the intrusion and depredations of
such domestic animals as the horse, the ox, the sheep, dogs. It is said that, "every man's dwelling is his castle,
and the hog, for the reason that from his very nature he that even the king may not enter, if forbidden," If the
can not be subjected to the same conditions of restraint. king can not enter against the owner's consent, [*295]
If one of the domestic animals escapes from the owner, his dog can not enter. What is the owner to do when he
and goes on the land of a stranger and injures his crops, has secured his dwelling by closing his door, and finds,
he may impound it, and demand compensation for his on awakening, in the nighttime, that it has been forced
damages. If a dog be found upon one's land, it can not

Emmanuel Ortega
Page 6 of 6
95 Mo. App. 289, *295; 69 S.W. 26, **27; 1902 Mo. App. LEXIS 41, ***9

and entered by a thieving dog, and his property stolen considered [***12] valuable property, which no one may
or destroyed? He has no redress against the owner of wantonly kill or injure, on the other hand, the vicious and
the dog, even if he knew who such owner is, unless he thieving dog should be held as a common nuisance,
could bring home to him the knowledge of its which any person may abate who suffers therefrom.
mischievous propensities. If a vicious animal breaks into
the close of the [***10] owner, and is found destroying For the reasons given the cause is reversed and
property, he may kill him to protect such property. remanded. All concur.
Parrott v. Hartsfield, 32 Am. Dec. 673. Every man's
dwelling is sacred against the mischievous intrusions of
End of Document
either man or beast. HN7[ ] An officer of the law can
not enter against the consent of the owner, except in
cases of felony, unless such officer is armed with a writ
emanating from the State.

The facts of the case show that the defendant had


secured the screen door to his kitchen, and that during
the night he was awakened and found the plaintiff's dog,
which he did not know, had broken the screen and
entered, and as the dog came out he shot and killed
him. Upon investigation he ascertained that his milk that
was placed upon a shelf by his wife, had been
destroyed by the dog. We believe, under the
circumstances, he had the right to kill him. Because he
killed the dog after and not while he was in the act of
committing the depredation, could make little or no
difference, for it is a well-known fact, that a thieving dog,
when he has once obtained what he is in pursuit of, will
come again for the same purpose. The exasperating
experience of every farmer's wife attests that this is
almost invariably [***11] the case with thieving dogs;
and we hold that under the circumstances the court
committed error in not permitting defendant to show that
his milk had been destroyed a short time before in the
night, which had been placed on a shelf in the back
porch, as it was reasonably probable it was destroyed
by the same dog.

We think the defendant was entitled to have had [*296]


his case go to the jury, at least on said instruction No. 5,
refused by the court. If he had reasonable grounds to
believe that when he shot and killed the dog, that it was
necessary to protect his property, he was justified. We
further hold that HN8[ ] a thieving dog is as much a
common nuisance as a sheep-killing dog, and as such
is not entitled to the protection of the law, for there is no
way to avoid his depredations, except to kill him, unless
the owner knowing his evil propensities, restrains him.
But we know the latter is scarcely ever done, and the
consequence is there are always more or less
mischievous animals at large, unrestrained, thieving and
committing depredations wherever the opportunity is
presented. While it is true that the good and intelligent
dog, the friend and companion of man, is justly

Emmanuel Ortega