Kanis v. Rogers

Kirby, J., (1) (after stating the facts). It is contended for reversal that the court erred in refusing to give said requested instruction numbered 2. The instruction as requested, was not -an accurate statement of the law, since the burden of proof in the case was not upon the plaintiff, except to show the value of the dog, the defendant having admitted the killing. The instruction not being correct, the court did not err in refusing it, although no other instruction was given upon the burden of proof alone. The court instructed the jury, however, after saying that the plaintiff brings this suit to recover damages for the dog, which the defendant killed, alleging that the dog had a market value, and was killed without cause: “The question for you to decide in this case is the motive that controlled the defendant in the killing of this dog. You are instructed that if he acted iii good faith, and believed it was necessary to kill this dog in order to protect his property he would be justified in doing it under the law; but if he killed it without taking into consideration the circumstances, if he acted negligently or wantonly in shooting the dog, then you will find for the plaintiff.” “2. If you find for the plaintiff, the amount of the damages will ibe such ,an amount .as you may find from the evidence will compensate him for the loss of the dog, if you find that the dog had a market value. ” (2) The defendant having admitted that he killed plaintiff’s dog, was bound to pay damages therefor in such sum as the dog was shown to be worth unless he killed it under such circumstances as gave him the right to do so, without liability to damages therefor, the burden of proof of which devolved upon him. The court in effect told the jury that if they found he believed it was necessary to kill the dog in order to protect his property, he would be justified in doing so under the law, if he took into consideration the circumstances surrounding the transaction, and did not act negligently or wantonly in shooting the dog, which was as fair a statement of the law as he was entitled to. (3) The court’s instruction as to damages is not happily phrased, but means no more than to tell the jury if they should find for the plaintiff, or in other words, that the defendant was not justified in killing the dog to protect his property, that they should award damages in such an amount as would equal the market value of the dog. Of course, plaintiff was not entitled to compensation for the loss of the dog, except in the amount of its proved market value, as the instruction indicates. The jury could well have found for appellant had they believed his statement, but they found against him upon testimony sufficient to support the verdict, and the judgment is affirmed.