Action for damages. Judgment for defendant. Plaintiff appealed.
Jerry V. Waldwinkel was of noble lineage. The blood of five generations of natural hunters coursed his veins. When but ten months old he journeyed west. He settled in the county of Hill county, in the state of Montana.
First he lived in Havre. About the first part of May 1947 he left the noise and bustle of that busy city behind him and went to live at the quiet country home of Ira Holsapple, situate six
miles north of Havre, on the Wild Horse Trail. There he made his home until the afternoon of June 8, 1947.
During all his days Jerry V. Waldwinkel led a dog's life, for, be it remembered, Jerry V. Waldwinkel was a large, dark brown, registered, thorough-bred German short-haired pointer, with a long pedigree and a short tail. His recorded ancestry carried back to one Rap von Schwarenberg, reputed to have been at one time a national field trial champion. Jerry V. Waldwinkel, aged twenty-one months and weighing sixty pounds, spent his first five days at the Holsapple home tethered to a chain in Mr. Holsapple's granary. Thereafter he was released at times and permitted to run at large.
On the Wild Horse Trail, there lived a rancher, L.N. Hamblock, a grower of pure-bred beef and milking Shorthorn cattle. Mr. Hamblock and Mr. Holsapple were neighbors, their respective dwellings being but about two blocks apart.
Shortly after Jerry V. Waldwinkel moved into the neighborhood, Jerry accompanied by a small, short-haired terrier, belonging to one John Landskov, were discovered in Mr. Hamblock's pasture chasing Hamblock's pure-bred cows, then heavy with calf. Such fact Mr. Hamblock promptly reported to Jerry's keeper, Mr. Holsapple, with the warning that he had better keep his dog up or it would be destroyed.
Upon being asked, on the witness stand, to relate what Mr. Hamblock told him, Mr. Holsapple testified: "There had been some dogs around in the evening, been bothering and chasing this livestock, and on account of that, — then I went to work in the evening, — I used to put Jerry on a chain and chained him in the garage, and he told me that he was going to have to do something about these dogs that were bothering his livestock and that is why Jerry was in the garage on a chain."
Mr. Hamblock testified: "The dog, and also the Landskov dog, had been after my cattle in the south pasture, and these cows are pretty expensive cows and they were calving, and they had been chasing the cows and they bunched them up over at the corral and I shot [at] them — shot at the dogs twice, two different times,
and I meant to kill them, and I went down and told him he had better keep his dog up, because the next time I was going to kill the dog.
"Q. This Landskov, what kind of a dog was it? A. It was a short-haired dog, weighed about twenty pounds, like a fox terrier something like that; I am not sure.
"Q. And did you see these two dogs chase your cattle? A. I and my wife both saw them.
"Q. How many times, Mr. Hamblock? A. Three times.
"Q. Did you shoot at them with a rifle? A. A twenty-two special.
"Q. And missed them? A. And missed them, yes, sir. * * *
"Q. Did you at any time see this dog ranging out a considerable distance from the Holsapple home? A. Yes, sir, I did.
"Q. How far? A. Three miles.
"Q. What direction? A. It was northwest from the home ranch.
"Q. Was it just the once that you saw him out there? A. No, it was two or three times.
"Q. Was he alone? A. No, the Landskov dog was with him.
"Q. Just the two of them? A. Just the two dogs."
Leon Chagnon occupied and operated a farm situate four miles distant from the Holsapple home. His two sons, — William, aged twenty-nine years, and Paul, somewhat younger, — assisted in operating the farm whereon Chagnon kept a flock of sheep, which he owned, numbering more than two hundred head.
During the latter part of May and the first part of June 1947, the flock was set upon by unidentified marauders and sixteen to eighteen head of Chagnon's sheep were killed.
To protect the flock against further raids and loss, William Chagnon became on the alert for the killers. On June 6th, 1947, he drove the flock to a hill in the Chagnon pasture. There, from a point of vantage on the hilltop, he observed two dogs coming towards the sheep. When about a half mile away the dogs stopped. Apparently they had discovered William's presence for they came no nearer to the sheep that day. At that distance
William was neither able to identify the dogs nor to obtain an accurate description of them.
Two days later, to-wit, on Sunday afternoon, June 8, 1947, at about 2 o'clock, the Chagnon sheep suddenly "came running off the hill like something was bothering them," and they "bunched up" by the Chagnon barn. One sheep had been seriously wounded and injured.
William Chagnon testified: "I found one that was all tore up. Its face was practically tore off and she was ripped in the belly. She was an old sheep, a ewe."
Immediately upon observing the commotion among the sheep, William and Paul Chagnon grabbed their guns and, accompanied by Stuart Snyder, hurriedly climbed into an automobile and hastened up the hill in the direction from whence the sheep had come. On reaching the brow of the hill they beheld two dogs in the coulee below. The dogs were in the Chagnon pasture about a quarter of a mile from the Chagnon house and barn. Both dogs were on a freshly killed sheep.
William Chagnon testified: "They were on their feet and they were tearing at the sheep. They were both busy and they didn't notice us as we first drove up."
The automobile was stopped about thirty yards short of where the two dogs were so engaged. As the occupants were stepping from the car, they were first noticed by the dogs. Thereupon the dogs turned tail to flee the scene.
One, a large, dark brown dog with a short tail, on leaving the sheep on which he had been working, was shot and killed as he started up the hill.
The other dog, a small, yellow spotted fox terrier, kept along the bottom of the coulee well out of gunshot range, running to the John Landskov home about a half mile distant, closely pursued by the Chagnon brothers and Snyder.
The terrier belonged to Mr. Landskov. When informed of the bloody business in which it had been engaged, Mr. Landskov surrendered the terrier and consented that it be killed, and this was promptly done.
The Chagnon brothers and Snyder thereupon and immediately returned to the sheep on which the dogs had been tearing and chewing. The sheep was found to be a ewe belonging to Leon Chagnon. She had been torn on her side, back, head and neck. Her wounds were fresh. She was then dead, but so recently had she been killed that she was still bleeding and warm.
The large, dark brown dog with a short tail that had been slain was identified as Jerry V. Waldwinkel.
Ira Holsapple, the dog's keeper, testified:
"Q. (By Mr. Angstman) When did you first miss the dog out at the ranch? * * * A. Well, I missed him the morning of the 9th.
"Q. Where did this dog stay out at the ranch where you lived? A. I kept him in a granary on a chain.
"Q. How did he get loose from the chain, if you know? A. I turned him loose Sunday morning, fed him and turned him loose, because I thought as long as I was going to be up there I would turn him loose. I turned him loose and he was around the yard there. That was why I turned him loose.
"Q. Was that on the 8th of June? A. Yes, that was on Sunday; I guess that was on the 8th of June.
"Q. When did you next see the dog? A. Up in that coulee dead."
This is an action brought by Frank Granier, the owner of Jerry V. Waldwinkel, wherein he seeks to recover from the defendant, William Chagnon, $2,000 damages ($500 actual plus $1,500 exemplary) for the alleged wanton and malicious killing of plaintiff's dog. By answer defendant admitted that he killed the dog, but denied that he acted either wantonly or maliciously, and, as justification, pleaded that he had caught the dog in his father's pasture in the act of chewing and working over a newly killed sheep belonging to defendant's father.
A jury was impaneled to try the case. Various witnesses were sworn and examined. Four witnesses testified on behalf of the plaintiff and five on behalf of the defendant. At the close of all the testimony and after both plaintiff and defendant had rested,
plaintiff moved the court for a directed verdict. Before the court had ruled upon such motion, the defendant moved for a directed verdict in his favor. Thereafter neither party either requested or suggested that any question or issue in the case be submitted to the jury. With both motions before it, submitted but undetermined, the trial court then inquired of defendant's counsel, Mr. Burns, and of plaintiff's counsel, Mr. Angstman, if either had anything more to say.
The record of the proceedings at this stage of the trial is as follows:
"The Court: (To Mr. Burns) Have you anything more to say? Or Mr. Angstman, have you anything more to say? Are you still standing on your motion?
"Mr. Angstman: Yes, I still stand on it.
"The Court: You still urge your motion?
"Mr. Angstman: Yes.
"The Court: Well, under those circumstances, according to Montana law, apparently there is nothing for me to do except to decide this matter right now, and the motion of the defendant will be granted.
"Mr. Angstman: And may we have sixty days in addition to the statutory time in which to prepare, serve, and file bill of exceptions?
"The Court: Yes, you may. Just a second. Do you have your verdict ready?
"Mr. Burns: I have a verdict ready, but I will have to draw a judgment on this, your Honor.
"The Court: Well, we want a verdict signed by the jury. You asked for a directed verdict.
"Mr. Burns: Yes, I have a verdict.
"The Court: We will bring in the jury and have it signed. Call in the jury. (Whereupon the jury was brought into Court by the bailiffs.) In this case, both sides have made a motion for a directed verdict and placed the matter squarely in the lap of the Court, rather than the ultimate decision of the jury, and the Court has granted the motion of the defendant for a directed
verdict, and the Court does direct a verdict for the defendant against the plaintiff, and it remains only for one of your number to sign the verdict. Mr. Wigmore, will you step over here and sign the verdict? Thereupon the following verdict was signed, filed and entered in this cause:
"(Title of Court and Cause) "Verdict
"We, the Jury in the above entitled action find the issues herein in favor the defendant and against the plaintiff. Dated this 17th day of March, 1948. L.B. Wigmore, Foreman.
"Mr. Angstman: I take it, your Honor that our sixty days —
"The Court: You have sixty days in addition, yes."
From the judgment entered on such verdict plaintiff has appealed.
Rulings on Motions for Directed Verdict. Plaintiff specifies error in denying plaintiff's motion for a directed verdict and in granting that of defendant.
The complaint charges that "the defendant wantonly and maliciously shot and killed * * * a hunting dog * * * the property of plaintiff of the value of Five Hundred Dollars ($500.00) to plaintiff's damage in the sum of Five Hundred Dollars ($500.00)" and that, "because of the violent, wanton and malicious acts of defendant * * * he should be required to pay additional damages by way of example" in the sum of $1,500. In his answer defendant admitted the killing of the dog, but denied that he acted either wantonly or maliciously and pleaded justification under the facts and the law.
There is much substantial evidence to support the defense that[1] under the circumstances and the statute (3417.15) the defendant was justified in destroying the dog. But the evidence fails to establish that the defendant acted either "wantonly" or "maliciously" as is alleged in the complaint, and the trial court properly denied plaintiff's motion for a directed verdict.
It has long been the well-established rule in this[2, 3] jurisdiction that, where, as here, plaintiff and defendant both move for a peremptory instruction directing a verdict and do nothing
more, each party thereby waives a trial by jury and submits to the trial judge the question whether, as a matter of law, a verdict should be directed for the plaintiff or for the defendant. Under such circumstances the findings and judgment of the trial court are conclusive on appeal if there is substantial evidence to support the same. Stoltze Land Co. v. Westberg,63 Mont. 38, 43, 206 P. 407, 408. Compare: Electrical Products Consolidated v. El Campo, Inc., 105 Mont. 386, 390,73 P.2d 199, 201, 202; Exchange State Bank v. Occident Elevator Co.,95 Mont. 78, 85, 24 P.2d 126, 128, 90 A.L.R. 740; Olsen v. Zappone, 83 Mont. 573, 580, 273 P. 635; Harvey E. Mack Co. v. Ryan, 80 Mont. 524, 533, 261 P. 283; Anderson v. Border,75 Mont. 516, 524, 244 P. 494; Midland Motor Co. v. Norwich Union Fire Ins. Soc. Ltd., 72 Mont. 583, 593, 234 P. 482; Stiemke v. Jankovich et al., 72 Mont. 363, 370, 233 P. 904; General Fire Extinguisher Co. v. Northwestern Auto Supply Co., 65 Mont. 371,389, 211 P. 308; Moore et al, v. Crittenden et al., 62 Mont. 309,311, 204 P. 1035; Bank of Commerce v. United States Fidelity Guaranty Co., 58 Mont. 236, 242, 194 P. 158; Fifty Associates Co. v. Quigley, 56 Mont. 348, 352, 185 P. 155; Carpenter v. Nelson, 43 Mont. 566, 118 P. 272.
The foregoing rule, known as the majority rule, is in harmony with the provisions of our statute, sec. 9364, R.C.M. 1935; Moore v. Crittenden, supra; Electrical Products Consolidated v. El Campo, Inc., supra, and is the rule which obtains in the federal courts. See: Fireman's Fund Indemnity Co. v. Kennedy, 9 Cir.,97 F.2d 882, 890, and Aetna Ins. Co. v. Kennedy, 301 U.S. 389,393, 57 S.Ct. 809, 811, 81 L.Ed. 1177.
Section 9325, R.C.M. 1935, provides: "An issue of law must be tried by the court, unless it is referred upon consent."
Section 9364, R.C.M. 1935, provides: "Where, upon the trial of an issue by a jury, the case presents only questions of law, the judge may direct the jury to render a verdict in favor of the party entitled thereto." In Moore et al. v. Crittenden, supra, this court, after quoting the statute (9364) said: "This section does not state any new or strange doctrine. The rule announced
is recognized by the authorities everywhere, even in the absence of statute. (Citing authorities.) The decision in each of the cases cited above is in entire harmony with the rule of the statute and is so recognized by the overwhelming weight of authority."
The annotations in 18 A.L.R. 1433-1460, to Manska v. San Benito Land Co., 191 Iowa 1284, 184 N.W. 345, 18 A.L.R. 1430, list the court decisions following each rule. The majority rule is stated thus (18 A.L.R. 1433): "In a majority of the jurisdictions wherein the question has arisen, it has been held that where each of the parties to an action requests the court to direct a verdict in his favor, and makes no request that the jury shall be allowed to determine any question of fact, the parties will be presumed to have waived the right to a trial by jury, and to have constituted the court a trier of questions both of law and of fact." For more recent decisions see: Annotations in 69 A.L.R. at pages 634-639, and in 108 A.L.R. at pages 1315-1335. Also see National City Bank of Cleveland v. Jones, 1948,149 Neb. 844, 32 N.W.2d 755, 757; Stallings v. Britt, Ga. Sup. 1948,49 S.E.2d 517, 519; Cortiana v. France, 1948, 212 Ark. 930,208 S.W.2d 436, 438; Foudy v. Daugherty, Ind. App. 1947,76 N.E.2d 268; Lawrence v. Gladitsch, 179 Or. 111, 169 P.2d 877; City of Tucson v. O'Rielly Motor Co., 64 Ariz. 240,168 P.2d 245, 246.
By their respective motions did both plaintiff and defendant constitute the trial court the trier of questions both of law and of fact. Secs. 9325 and 9364, R.C.M. 1935.
The statute. Section 3417.15, R.C.M. 1935, provides: "Any dog, whether licensed or not, which, while off the premises owned or under control of its owner, shall kill, wound or injure any livestock not belonging to the master of such dog, shall be deemed to be a public nuisance and may be killed forthwith by any person, or the owner, when notified, shall kill such dog within twenty-four (24) hours and if he fails to do so an officer may be notified and shall kill or cause to be killed such dog; provided, that nothing contained herein shall apply to any dog acting
under the direction of its master, or the agents or employees of such master."
The Evidence. Under the circumstances here shown, the findings and judgment of the trial court are conclusive on this appeal, if there is substantial evidence to support the same.
Plaintiff's brief concedes that there is evidence in the record which indicates that Chagnon's ewe whereon the dogs were discovered working and eating had been freshly killed, but says plaintiff: "No one had seen the sheep killed, wounded, or injured." Plaintiff contends that in the absence of an eyewitness to the actual injuring, wounding or killing that "there is no evidence that the two dogs killed it * * * so that it would be merely conjecture to say the dogs had killed, wounded, or injured any livestock." With this contention we cannot agree.
The law of evidence does not require demonstration or such[4, 5] degree of proof as, excluding possibility of error, produces absolute certainty. Such proof is rarely possible. Satisfactory evidence satisfies the law, being such proof as ordinarily produces conviction in an unprejudiced mind. To justify his act in destroying the dogs, defendant was not required to produce the direct testimony of eyewitnesses to the actual killing of the sheep. Indirect evidence suffices including the reasonable appearance of things and the reasonable inferences and deductions to be made from the other facts proven. Williams v. Brownfield-Canty Carpet Co., et al., 95 Mont. 364, 370,26 P.2d 980; Exchange State Bank v. Occident Elevator Co.,95 Mont. 78, 87, 24 P.2d 126, 90 A.L.R. 740.
The evidence shows: That, while miles off the premises of its[6] owner or keeper, plaintiff's dog was caught, red-footed and red-fanged, in Leon Chagnon's sheep pasture, tearing and chewing on one of Chagnon's ewes still bleeding and warm, and that another of Chagnon's sheep, — her belly ripped — her face practically torn off, — had just escaped a like fate by running to the barn with the remainder of the flock. Loss of some sixteen or eighteen sheep to unidentified raiders had most recently been suffered, and defendant was authorized to act forthwith on what
he witnessed in the Chagnon sheep pasture on the afternoon of June 8, 1947. The law accords him "the right to act on the reasonable appearance of things." 3 C.J.S., animals, sec. 219, at page 1336, note 18, quoted with approval in Trenka v. Moos,118 Mont. 607, 613, 614, 168 P.2d 837, 841, 842.
The damning evidence supplied by the witnesses for both parties produces conviction in unprejudiced minds and compels the conclusion that Jerry V. Waldwinkel had become a sheep-killing dog. By express statute such dog is "deemed to be a public nuisance and may be killed forthwith by any person." Section 3417.15. Having become a destroyer of livestock and a menace to the public, the statute authorizes the destroyer's destruction, and in view of the motions made and the evidence before it, the trial court was warranted in directing a verdict for defendant.
Trenka's Case. Plaintiff asserts that he instituted and prosecuted his action on the theory promulgated in the decision in the case of Trenka v. Moos, supra. Trenka's Case is readily distinguishable from the case at bar.
Trenka's Case was decided under the rule of the common law and not under the provisions of section 3417.15, R.C.M. 1935, the opinion expressly stating that "the provisions of that statute [3417.15] have not been considered in arriving at our decision."
In Trenka's Case there were no motions for a directed verdict made by the respective parties at the close of all the evidence as here. Because of prejudicial errors committed by the trial court in its rulings on objections made to the introduction of material evidence and because of prejudicial errors in the court's instructions to the jury, the judgment in Trenka's Case was reversed and the cause remanded for a new trial.
In the case at bar the property in peril was "livestock," expressly sought to be protected by the provisions of section 3417.15, R.C.M., while in Trenka's Case the property in peril was poultry — chickens — not covered by the provisions of section 3417.15, R.C.M.
"Livestock" as employed in section 3417.15, R.C.M., supra.[7] means domestic animals or beasts generally collected, used
or raised on a farm or ranch as cattle, sheep, swine, goats, horses, mules, donkeys, etc. Compare Howard Herrin v. Nashville, C. St. L.R. Co., 153 Tenn. 649, 284 S.W. 894, 896, 46 A.L.R. 1530, 1533; Hapeman v. Citizens' Mut. Fire Ins. Co.,126 Mich. 191, 85 N.W. 454, 86 Am. St. Rep. 535; Lee County Sav. Bank v. Snodgrass Bros., 182 Iowa 1387, 166 N.W. 680; Inman v. Chicago, M. St. P.R. Co., 60 Iowa 459, 15 N.W. 286, 287; Lee v. Minneapolis St. L. Ry. Co., 66 Iowa 131, 23 N.W. 299; Mathews v. State, 39 Tex.Crim. R., 47 S.W. 647, 48 S.W. 189, but the term does not include dogs, Howard Herrin v. Nashville, C.
St. L.R. Co., supra; Henderson v. Lancaster Wallace,2 La. App. 680, 683, or geese, James v. Atlantic Coast Line R. Co.,166 N.C. 572, 82 S.E. 1026, 1027, L.R.A. 1915B, 163, Ann. Cas. 1915B, 470, or turkeys, Addison v. Norfolk Southern R. Co., 190 N.C. 849,129 S.E. 156, or other domestic fowls, The Matilda A. Lewis, 16 Fed. Cas. No. 9,281, pages 1108, 1109.
Common Law Rule. The common law rule governing the right of the owner of domestic fowls to kill a dog found attacking and imminently menacing their safety is correctly set forth in 3 C.J.S., Animals, sec. 219, at page 1336, notes 14-21, quoted with approval in this court's decision in Trenka's case, supra,118 Mont. 607, at pages 613, 614, 168 P.2d 837, at pages 840, 841. See also Janson v. Brown, 1 Campb. 41, 42; Livermore v. Batchelder, 141 Mass. 179, 5 N.E. 275; Marshall v. Blackshire,44 Iowa 475; State v. Smith Cauley, 156 N.C. 628, 72 S.E. 321, 36 L.R.A., N.S. 910; O'Leary v. Wangensteen, 175 Minn. 368,221 N.W. 430; Leonard v. Wilkins, 1812, 9 Johns, N.Y. 233; Ex parte Minor,203 Ala. 481, 83 So. 475, 10 A.L.R. 687, and annotation at pages 689-697.
The degree of the imminence of danger to chickens to justify the killing of a chicken-stealing dog and the degree of the imminence of danger to sheep from a sheep-stealing dog are not the same.
From time immemorial, the law has recognized the right of the master of the flock to kill a sheep-killing dog caught in the commission of the act.
"It hath been always taken for the law, and universal usage is high evidence of the law, that a sheep-stealing dog, found lurking about, or roaming over a man's premises where sheep are kept, incurs the penalty of death." Parrott v. Hartsfield, 1838, 4 Dev. B., N.C., 242, 32 Am. Dec. 673, 674.
In the monographic note to Hamby v. Samson, 105 Iowa 112,74 N.W. 918, 40 L.R.A. 508, 67 Am. St. Rep. 285, at page 295, it is stated: "Sheep raisers are especially subject to loss and annoyance from the predatory and wolfish instincts of dogs, and statutes have been quite generally enacted by states, in the exercise of their police power, to obviate such nuisance. In the absence of such statutes, however, the right of a person to defend his sheep from dogs, even to the extent of killing the dogs, is unquestioned. * * * It is not necessary that the dog be caught in the act of killing * * *" (Citing cases).
2 Am. Jur., Animals, sec. 129, page 790, says that: "* * * it has always been held that a sheep-stealing dog found lurking about, or roaming over, a man's premises where sheep are kept incurs the penalty of death." To like effect see the text in 3 C.J.S., Animals, sec. 219, at page 1337, notes 24-28.
Rulings on Evidence. Plaintiff specifies as error two rulings[8] of the trial court, excluding certain testimony respecting the value of plaintiff's dog. Such testimony would have been important only in assessing plaintiff's damages in the event the court or jury found for the plaintiff. Here, however, where the court granted defendant's motion for a directed verdict, the value of the dog became wholly unimportant and prejudicial error may not be predicated upon the exclusion of the offered testimony. Compare Quinlivan v. Brown Oil Co. et al., 96 Mont. 147,29 P.2d 374; Anderson v. Border et al., 75 Mont. 516,244 P. 494.
The statute applies to "Any dog" of whatever value not acting[9] under the direction of its master or the agents or employees of such master that, "while off the premises owned or under control of its owner, shall kill, wound or injure any livestock not belonging to the master of such dog." Section 3417.15
It matters not whether the sheep-stealing dog be a patrician or a plebian dog. Each suffers the same fate.
No prejudicial error appearing and there being substantial evidence sustaining the verdict for defendant, the judgment entered on such verdict is affirmed.
Associate Justices Freebourn and the Honorable W.R. Flachsenhar, District Judge sitting in place of Mr. Justice Bottomly, disqualified, concur.