Seidner v. Dill

206 N.E.2d 636, 137 Ind. App. 177, 1965 Ind. App. LEXIS 571

• Court: Indiana Court of Appeals
• Decided: April 30, 1965
• Docket: 20,110
• Status: Published

Opinions

Bierly, P. J.

Charles Dill, appellee, brought this .action in the Municipal Court of Marion County, Indiana, therein, alleging that the defendant-appellant, Harold Seidner, maliciously and intentionally shot and killed plaintiff’s dog.. Defendant answered in compliance with Rule 1-3, and by filing a second paragraph of affirmative answer alleging:

“That a dog of unknown breed and unknown .ownership was roaming over the country, unattended by its master or owner or its owner’s agent, and did enter upon the property of the defendant and attacked his fowl, and that in defense of his personal property the defendant did shoot and kill said animal as permitted by the statutes of Indiana.”

No reply to defendant’s second paragraph of answer was filed: by the plaintiff.

Without the calling of a jury this case was tried to the- court which made a finding in favor of the plaintiff and rendered judgment thereon for the sum of $600 and costs against the defendant.

Defendant within time filed a motion for a new trial alleging three grounds in support thereof. The court overruled the motion and this appeal followed charging error of the court in the overruling of said new trial motion.

Of the three grounds alleged in his motion for new trial, appellant in his brief argued only the third, to-wit:

“The decision of the court is not sustained by sufficient evidence and is contrary to law.”

In his brief appellant assumed the issue in the cause to be:

“May a person kill a dog which is known to have chased and worried his fowl and is upon his property unattended by its master or owner or his owner’s agent?” (Emphasis supplied),

while the appellee contended the issue raised to be:

“Was the verdict of the trial court sustained by sufficient evidence and in accordance with the law?”

While we might criticize the appellee’s use of the word “verdict” as technically being applied to á finding by a jury, and the use of the term “decision” as appropriate to the action by the court nevertheless, our courts have held that the term “verdict” used instead of “decision” in the action of ¡the court is not fatally defective.

We shall set forth, by quoting, the- statutes or a part thereof relied upon by appellant in support. of. his appeal, as follows:

§16-203 (3707). “Any dog that is known to have killed, maimed, chased or worried, any sheep, cattle, horses, swine or other live stock or fowls, unless accompanied by his master or some other person, may be killed by any person, and any person who shall own, keep or harbor any dog, after he knows that such dog has killed or maimed, chased or worried any sheep, cattle, horses, swine, other live1 stock or fowls shall be fined . . . .” §16-208,.. Burns’ 1964 Replacement (Acts 1897, ch. 119, §8, p. 178).

§16-204 (3708). “If any dog shall be found roaming over the country unattended by his master or owner or his owner’s agent, it shall be lawful to kill such dog.” §16-204, Burns’ 1964 Replacement (Acts 1897, ch. 119, §14, p. 178). (Our emphasis).

Testimony and evidence in this cause was presented in the trial court by five witnesses for the plaintiff and three for the defendant.

Dr. Dill, the plaintiff-appellee, testified that he is a practicing physician living in Indianapolis and that the dog in question was registered in the name of Governor Orbie Ranger, the certificate of registration bearing the number 620810 and the date of January :14j-1961, showing ownership.in the. name-of C. W. Dill, M.D.; and that he purchased the dog from, one Alfred Davidson for $300. He further testified that on October 28, 1961 his dog, Ranger, was the winner of third place in the shooting dog stake, in the field trial held by Marion County Pointer and Setter Club in Versailles, Indiana, and that on March 3, 1962, the dog was awarded first place by .the same club in a similar showing. Appellee further testified that on the day the dog was killed he and .a companion had planned to go deer hunting, but before leaving he looked .in on the. dog in the pen and suggested to his wife to have the children feed the dogs.

He testified that the dog wore a collar with- a tag attached bearing the name of the dog, also the name and telephone number of the owner. Upon returning from the hunt Dr. Dill stated that after being told-' Ranger had been shot and killed, he examined the dog; noted the wounds and found the dog’s mouth free of any feathers of material; that he took the dog to the home of the appellant; that appellant acknowledged shooting the dog but attempted to justify the killing of the dog, charging that the dog had been seen about his home that morning, and that later in the clay, oh hearing his own dog barkiiig, Seidner left his house and saw two dogs coming north from Hanna Avenue to the Cottingham property, whereupon appellant went into the house, got his gun, walked back to the east side of the fence and shot the dog. ■ <

Further, Dr. Dill testified he had not known of Ranger attacking chickens; that the dog had been trained by an expert, Alfred Davidson, not to attack barnyard livestock or fowls; that he had been offered, but refused, $600 for the dog, Ranger. Alfred Davidson testified on behalf of appellee by stating that he sold Ranger to Dr. Dill for the price heretofore stated of $300; that training dogs was a hobby with him and that he had trained Ranger as a püp to become an.efficient bird dog and to bé afraid Of chickens .and !pay no attention to livestock. >

Rita Kemp, a . neighbor of appellant Seidner, described the topography of the land area and on the morning in question stated she heard a shot, saw a dog crumble and fall, but the dog got up and then she saw the man fire a second shot; that when her husband returned from work and was told by the wife that the dog had been shot, they became so emotionally upset that they were unable to eat supper; that the man who shot the dog was standing near the fence and that the dog was killed on Cottingham’s property. Witness further testified she saw the man who shot the dog pick up a rag and then left it, but that the object which he picked up could not have been a chicken.

Charles Kemp, husband of Rita Kemp, testified that after arriving home and being informed. that a' dog had been shot, he went over and noticed that the dog was Dr. Dill’s; that he said to his wife that he thought. Seidner had “shot himself into trouble”. He testified that he examined the dog, took the collar to the office of Dr. Dill, who was out, but that he left the collar at the office. Kemp further testified that he had hunted in the vacant field owned by Cot- ! tingham in company with his brother-in-law, Morton 1 Owens, in 1961, and that Seidner, appellant, called :thém over to his fence and said that since Kemp was .new in the neighborhood, he wanted him to know ¡that if his dog got on appellant’s property he would kill it.

Katherine Owens, a neighbor of the Kemps, testified that the Owens and Cottingham real estate joined; that on the day the dog was shot she heard a shot some time between 1:00 and 2:00 o’clock P.M., and upon looking out of her kitchen window, through the Cottingham property, she saw a dog running south after the first shot, and saw Mr. Seidner shoot the dog ■again When it was on the Cottingham property; that she had, on one previous occasion, seen Seidner. shoot a dog when it .was on the Cottingham property."

Appellant testified in his own behalf, stating that he worked at Indianapolis Drop Forge and a fence had been erected between his property and the Eellum property; that a 47-in'ch fence divides his property from the Cottingham-property and on top of this fence there was a one-strand barbed wire. Seidner further testified that he raises- chickens as a hobby; that he has from fifty to sixty chickens; that the blooded roosters are valued at $35 each and the hens at'$10 each. In answer to, the question: “Directing your attention to November 27, 1962, tell the court what happened”, he answered:

“I was out working in my yard and two dogs cáme through from the Eellum property, they came through the driveway. There were some chickens in the yard and they made a dive for the chickens. The dogs came up and went fight .. after them, The chickens ran home. I ran the dogs. out and threw rocks at them for about 800 feet .'into the thicket. I went back of the house, had my overalls on, My wife called to me and said the dogs are in the chickens again. I told my wife to get my gun. It has a three shot 20 gauge. I went tp the basement to get some shells. When I went - out the door there were two dogs, one had a chicken in its mouth and was going through the gate about one hundred fifty feet from my house. There was a truck in the driveway and . the dogs went toward it. They went in back of 'the truck" and about the time I turned around they came back towards me and headed for the hole in the. fence. I shot the black and white dog. He. dropped the chicken and fell to the ground. I shot at the other dog and then shot the black and white dog again. They both ran . across the Cottingham property went over the fence and across the. road. That. was. all the shells I had and I then went into the house.”

^Appellant .further related his conversation with Dr. Dill when Dill, brought the dog to his place. After seeing the dog appellant acknowledged shooting the dog and related why he had killed it. He stated that in the past he had had chickens killed by dogs and in some cases the Township Trustee had paid for those killed. He also stated that Dr. Dill told him that he would have given $500 had the dog not been shot.

On cross-examination Mr. Seidner gave answers to some questions as follows;

“Q. You say the dogs back of your property, one had a chicken in its mouth?'

“A. I saw them' running the chickens first and I ran them off.

“Q. When you saw them the first time, how long .was.it until.ypu saw them the second.time?

“A. I guess'about five minutes. My.wife called me/and said the -dogs were at the chickens ’ again.”

Mrs. Henrietta. Seidner testified' she saw the' dogs on their property after receiving a telephone call from one Mrs. Martin, whereupon she called'her husband and told him she saw a black and white dog with a chicken in its mouth; that she. went into the.-house after her husband said he would shpot the dog. On cross-examination Mrs. Seidner said she saw a dog by the hydrant with a chicken in its mouth but she could not tell the dog’s color.

Marcella Martin testified that she lived in the house next to appellant’s; that appellant’s chickens roamed on her property and that she called Mrs. Seidner when she saw the dogs among appellant’s chickens. On cross-examination Mrs. Martin said the chickens flew over the fence into her yard when scared but she never saw a dog catch any of them.

On re-direct examination, Dr. Dill related how . he had hunted with Ranger, and when around chickens the dog would run to him as he had been trained to be afraid of chickens. On re-direct cross examination Dr. Dill testified how he trained the dog to fear chickens and that the dog was punished when he- , disobeyed his command.

Mrs. Kemp, being called on re-direct examination, stated that she had heard two shots and saw the man firing the second shot and that the dog was on the Cottingham property when that shot was fired.

Appellee, in his complaint, charges appellant maliciously and intentionally shot and killed his dog; hence, to avoid a reversal, it is incumbent upon appellant to . establish on the record error by the trial court in its judgment that plaintiff-appellee had proved the charges set forth in the complaint.

At- the outset we feel impelled to define the word “know” as used in the first line of §16-203 Burns’, supra, and likewise, the phrase “roaming” as used in the first line of §16-204 Burns’, supra. These §§8 and 4 respectively, of ch. 119, were enacted in 1897, which was sixty-eight years ago and at a time when Indiana was predominantly agricultural, which was of major importance in the economy of the state. That was an era when the “sheep killing dog” was feared and accorded no consideration, when the fox, the coon, the opossum, the .groundhog and the muskrat were of economic importance to hunters, many of whom kept not only one but sometimes two or three dogs. Due to the peculiar characteristic of sheep as defenseless and non-agressive animals, an attack by a dog or dogs, in many cases, not only caused the loss and injury to sheep but caused those not killed to fail to maintain proper growth and development.

During the latter half of the past century legislation and court decisions in the state of Indiana have evidenced the value which has . been placed upon dogs over and above their intrinsic value. For your consideration we cite the-.following cases: The State v. Sumner (1850), 2 Ind. 377; Kinsman v. The State (1881), 77 Ind. 132; Jacquay v. Hartzell (1891), 1 Ind. App. 500, 27 N. E. 1105; Dinwiddie v. The State (1885), 103 Ind. 101, 2 N. E. 290; Lowell v. Gathright (1884), 97 Ind. 313.

From the testimony in evidence heretofore summarized, certain, facts were undisputed in the case at bar, to-wit: that the dog, Ranger, was a well-trained, registered black and white bird dog, bought by appellee Dr. Dill at a price of $300; that the dog had been trained to fear and be afraid of farm animals, including fowls; that on the day the dog was killed, Ranger and a companion dog escaped from their pen and came unattended near the appellant’s premises, and the dog, Ranger, was shot and killed; that Dr. Dill took the dead animal to appellant’s home and appellant ad-, mittéd he had shot and killed the dog; that in the presence of -appellant, appellee stated he would have given $500 had appellant not killed the animal; that exhibits were admitted' showing Ranger to have been awarded third place and first place in successive field trials. Further, undisputed evidence disclosed that appellant hád shot and killed a dog on the Cottingham property on a previous occasion; that one of the plaintiff’s witnesses testified that when he and his brother-in-law had at one time hunted on the Cottingham property, appellant had called them to the line fence and stated that he would shoot any dog or dogs crossing the line fence .to his property; that appellant was a chicken fancier, breeding a special kind of game fowls ; some of them were White Muffs, some Dennis Ma-honeys and some Hoey Muffs; that the roosters, which he valued at $35 each, were kept in the pens but that the hens, valued at $10 each, roamed about the premises and occasionally did fly across the fence, thereby being occasionally on the property of others; and that there was no evidence of feathers or blood observed in the mouth of the dog upon examination.

The evidence was conflicting relative to the circumstances under which the killing of the dog occurred. Chief among these was the question as to whose property the dog was on when killed. Evidence was in conflict as to whether the dog was seen with a chicken or a rag in its mouth.

We note in the recital of his testimony that when the dogs first came to his premises, Seidner threw stones at the dogs and drove them 800 feet into the thicket; that within five minutes thereafter his wife called him and stated that the dogs were back again, whereupon he went into the house, loaded his gun and came out and fired the shots that he testified scared the dogs away.

It appears that the appellant must have been confused in his testimony when he said that at the time he first saw the dogs he hurled stones after them and drove them 800 feet into the thicket; that within five minutes thereafter his wife called and stated that the dogs were back again, whereupon appellant fired three shots and killed the white and black dog.

Evidence strongly indicates that the dog was shot and died on a neighbor’s property; that two shots were fired at the dog, each taking effect; that the examination of the dog's mouth disclosed no evidence of feathers or blood. Further, the record before the trial court shows that appellee’s dog was not known as a dog “to have killed, maimed, chased or worried any sheep, cattle, horses, swine or other livestock or fowls; of any person including fowls owned by appellant”; that the dog had been carefully trained to avoid and fear chickens. ¶ •

Appellant cites Walker v. Towle (1901), 156 Ind. 639, 59 N. E. 20, as the sole Indiana case considered under the statutes relied on in support of his defense to the suit for damages, brought against him. We are Somewhat perplexed as to the applicability of this case' to purge the appellant from any wrong-doing in the killing of Ranger. In this case of Walker,' supra, we witness the passing of an ordinance by the Common Council of the City of Hammond, Indiana, ’ motivated by An emergency arising from a hydrophobia - situation-. This ordinance, in part, provided:

. . that whenever the mayor of said city may apprehend that there is danger of the existence or "spread of hydrophobia within or near said, city, die Shall issue a proclamation ordering and' requir- ■ ing. ¡all persons owning, possessing, or harboring, .or having the care, of any animal of the dog kind within the limits of said‘city, either to "confine' • •or muzzle such animal for,.a term not less,than .thirty nor more than ninety, days ensuing 1 'of such proclamation.'.. .”, the daté

"and ‘the ordinance provided that in any, violation of Said ordinance the Marshal, policeman or any- person, may: kill any dog running at' large not properly muzzled.-This ordinance invoked the. police power. ;of the . City to--protect the life and health of the community. -Under--this, ordinance the Town Marshal killed. , plain- . tiff’s í dog. ■ Plaintiff. obtained. judgment -. in the . trial •court upon a verdict by. a jury against, the defendant. On appeal the Supreme Court reversed the judgment of the triai court, stating that the Town Marshal was 1 justified in killing the dog as provided by the ordinance. -

Appellee cites the case of Springer v. State (1946), 224 Ind. 241, 66 N. E. 2d 529, in support of his contentions and says that the issues therein were strikingly similar to the issues before this court , in the case at bar. In that case of Springer, supra,. the statutes were relied upon as a defense to a criminal prosecution for malicious trespass resulting in the killing of a. dog under facts that are similar to the facts in the case at bar. In the Springer, supra, case appellant stated he was within his rights to kill. a dog alleged to have crippled and killed some, of his chickens; that the dog should be considered as a “roaming” dog and be subject to the penalty, of The “roaming .dog” statute. Judge O’Malley succinctly set forth the facts in that case as follows:

“The killing of 'the dog by appellant was admitted. The circümstarices under which it happened were ' in dispute.: The defendant claimed the dog with another was caught in the act of eating one of his chickens;, thát the defendant then went,into his home, secured his gun ánd shot the dog an d ' That it then- ran away from his property. However; : There 'was.: evidence that the dog was .shot,while ■ on the property of a neighbor; that it did. not run : after the shooting; that an examination of the mouth of the dog disclosed no evidence of blood, meat or feathers; and that if,it had been eating. . 9, chicken as claimed by the defendant below, traces ,. bf the'chicken wouid have been present in its' ! :mbüth;”:

On affirming the conviction of appellant., in That case, .the.learned Judge .said; ....... .....

. . There was some substantial evidence; from '■' which the'' Court' could háve 'fóund that • the killing o' •: was nót done; as . claimed by. the defendant; .; that it was wrongful, intentional, and . without;., just cause or excuse. There likewise wás süffi-''' cient evidence from which the court could have Jns.fenced that the dog had not; crippled or killed.any ; of. the "chickens- of- the appellant. -There was no evidence that the dog was vicious or-roaming.”

We are of the opinion "that the case of.' Springer. supra; is Controlling in the case at bar.

..In the drafting of the two sections of'the statutes qübtéd heretofore, the legislature did hot define the words “known”'-or “roaming”. Thus we may summarize .that’1 Webster’s defines “know” or “known”;as: to perceive, to apprehend as true, to; recognize as-valid or a fact on the basis of information, possessed or of one’s understanding or intelligence to possess a mental attitude in regard to, together with the clear comprehension of, a matter or thing, to have knowledge, to have a clear and certain perception and to possess wisdom, and to become cognizant. The word “known”, as used in the statute, §16-203, Burns’, supra, must be characterized as possessing deep significance; that the legislature which passed this statute did not use the word lightly but clothed it, as it appears to us, with a meaning requiring well-considered insight and judgment upon the part of the individual in its application to a specific circumstance or situation.

We do. not .think that appellant gave due consideration to the meaning of the. word “known” as used in the statute but. that his act was wholly inconsistent with and in variance from the norms of a community in the time and under the circumstances of the commission of his act.

It appears to us that the court could readily infer that the dog, Ranger, was not vicious, not known to have attacked stock or fowl, nor possessed of a roaming disposition as a proper interpretation of the statute would determine.

We have, in the case at bar, an admitted killing of the dog, which appellant claimed to be justifiable and lawful, presented to the court. ...:.This ‘ presented the factual situation in that the evidence was in conflict, thereby necessitating the weighing of the .evidence in the record before the trial court on which the trial-court could have and did find that, the killing of Ranger by the appellant was a -wrongful act and performed without justification. Further, we think that there ivas sufficient evidence to cause the court to infer that appellee’s dog neither crippled, killed, chased or worried any of appellant’s fowls.

It is a well-known principle of law that where the evidence is conflicting and the trial court found for the appellee, the Appellate Court, on appeal, may not disturb the decision of the trial court. Springer, supra; Appelby v. State (1943), 221 Ind. 544, 48 N. E. 2d 646; 49 N. E. 2d 533.

It is the law that on appeal “only the evidence most favorable” to appellee “and all reasonable and lawful inferences that may be drawn therefrom” will be considered by the vcourt. Badgley v. State; Brown v. State (1949), 226 Ind. 665, 82 N. E. 2d 841, and the weight of the evidence and the credibility of the witnesses are for the, trial court, not the reviewing court, to determine. Smith, Executrix v. Strock, Executrix (1945), 115 Ind. App. 518, 60 N. E. 2d 157; McKee v. Mutual Life Ins. Co. of New York (1943), 222 Ind. 10, 51 N. E. 2d 474. It is. for the trier of the action to reconcile, reject and accept part of disputed or conflicting testimony. Snider v. Truex (1943), 222 Ind. 18, 51 N. E. 2d 477.

In view of the fact that the evidence is conflicting and the trial court found against the appellant, it is neither the duty nor privilege of this court to alter a decision thus made by the trier of the facts.

We are of the.opinion that, in the case at bar the decision of the court was sustained by sufficient evidence and is not contrary to law. Since no error has been dbmonstrated by the appellant which necessitates a reversal of the cause, the judgment of the trial court is hereby affirmed.

Judgment affirmed.

Mote, J., concurs; Hunter, J., concurs in result with concurring opinion, in which Smith, J., concurs.