Bean v. Branson.*, 217 Mo. App. 399 (Mo. Ct. App., Eastern District 1924)

COX, P. J.

Action under section 4249, Revised Statutes 1919, for double damages for the value of a dog belonging to respondent which was killed by appellant. Trial by jury resulting in a verdict by nine jurors in plaintiff’s favor and damages assessed at $1. From the judgment rendered thereon the defendant appealed.

The statute under which this action was brought provides: “If any person shall maliciously or wantonly damage or destroy any personal property, goods, chattels, furniture or live stock the person so offending shall pay to the party injured double the value of the thing so damaged or destroyed ... ” The petition alleged that defendant had maliciously and wantonly killed a hound dog belonging to plaintiff of the value of $100, and prayed judgment for double value. The answer contained a general denial and further alleged that defendant was justified under section 4352, Revised Statutes

1919, in killing the said dog. Said section 4352, Revised Statutes 1919, provides: “If any person shall discover any dog or dogs in the act of killing, wounding or chasing sheep in any portion of this State or shall discover any dog or dogs under such circumstances as to satisfactorily show that such dog or dogs has or have been recently engaged in killing or chasing sheep or other domestic animal or animals, such person is authorized to immediately pursue and kill such dog or dogs: Provided however, that such dog or dogs shall not be killed in any enclosure belonging to or being in lawful possession of the owner of such dogor dogs.”

Defendant shot and killed a dog on his own premises after night. The evidence for plaintiff showed that plaintiff was the owner of the dog. There was no evidence of actual malice or wantonness. Plaintiff rested his case on mere proof that he was the owner of the dog and that defendant intentionally killed it. Appellant demurred to plaintiff’s testimony and insists that his demurrer should have been sustained for the reason that, as he contends, the burden was on plaintiff to show that the killing of the dog was either malicious.or wanton and that proof of an intentional killing, standing alone, does not show either malice or wantonness. As to proof of wantonness we think appellant’s position is right, hut in the trial, no distinction was made as to the meaning of the terms maliciously and wantonly further than to define these terms and that was done at defendant’s request. W'e shall, therefore, consider the demurrer to the evidence solely on the question of malice.

At the request of defendant an instruction was given defining the term malice as follows: “the term ‘maliciously’ as used in these instructions means the intentional doing of a wrongful act without just cause or excuse.” That is a correct definition of the legal meaning of the term malice. Now as to the proof. As stated, all that plaintiff proved was that defendant intentionally killed plaintiff’s dog. In our judgment this made a prima

facie showing of legal malice. As we understand the law, all intentional destruction of the property of another is prima facie wrongful and it is never incumbent on the plaintiff, even under the double damage act, to go farther and show express malice or ill will or that defendant knew he had no legal right to destroy the property. • When an intentional destruction of the property is shown, the law- implies legal malice and if there was any justification or excuse for the act, or if it was not malicious as that term is to be applied to the particular case under investigation, the burden is on defendant to make that showing. We think the demurrer to the evidence was properly overruled.

Defendant’s evidence was of such a character as to have warranted a finding that he believed and had good reason to believe at the time he shot the dog that it had recently been killing or chasing his sheep. '

We now go to the instructions. In the general instruction for plaintiff the court instructed the jury that if defendant maliciously or wantonly killed plaintiff’s dog, they should find for plaintiff. As already suggested, we do not think there was any evidence of wantonness as distinguished from malice and that term should have been omitted from the instructions but as that fact was not called to the attention of the trial court, we shall not further discuss it here.

For defendant, the court instructed the jury that if, when defendant shot the dog, he had good reason to believe and did believe that the dog had recently been engaged in killing or chasing defendant’s sheep, then he had the right to kill it even though as a matter of fact the dog had not killed or chased defendant’s sheep. In a general way, these instruction for plaintiff and defendant correctly declared the law.

The real contention in this case hinges upon the following instructions. For plaintiff, the jury were told that although they might believe that defendant shot the dog in good faith believing at the time that the dog had

been recently engaged in killing or chasing his sheep, yet this was not sufficient to justify the killing of the dog but to justify such killing the defendant must have had good reason to believe that the dog had recently been engaged in killing or chasing his sheep. This meant, of course, that an honest belief on part of defendant that the dog he killed had recently killed or chased his sheep would not relieve him from liability in this action unless that belief was founded upon reasonable grounds.

The defendant asked and the court refused the following instruction: “The court instructs the jury that" if you find and believe from the evidence that the defendant shot and killed said dog in good faith believing at the time that said dog had been recently engaged in killing or chasing his sheep, then the act of shooting and killing said dog would not be a malicious or wanton act and their verdict must be for defendant.”

The evidence on part of defendant showed that he in fact believed that the dog he shot had been recently killing or chasing his sheep and the instruction asked by him and refused by the court told the jury that if he did act in good faith and actually believed that the dog had been recently killing or chasing his sheep, then he was not liable in this action even though the jury should find that he had not formed his belief upon reasonable grounds. This was equivalent to- saying that if he acted from an honest motive and actually believed that the dog had been guilty of some act which would justify its killing, then he was not liable in this action. The statute under which this action is brought is penal iu its nature and requires the assessment of double damages. Doubling the damages is to that exent a punishment inflicted upon the wrongdoer and to our mind the same rule should apply in a suit under this statute as is applied when punitive damages are sought to be recovered.

To authorize the assessment of punitive damages, which is done to punish the wrongdoer, the party charged

must know when lie commits the act that his act is wrongful. [Trauerman v. Lippincott, 39 Mo. App. 478, 488; Leavell v. Leavell, 122 Mo. App. 654, 99 S. W. 460; Dunham v. Miller, Adm’r, 154 Mo. App. 314, 320, 133 S. W. 675; McNamara v. St. Louis Transit Co., 182 Mo. 676, 683, 81 S. W. 880; Custer v. Kroeger, 209 Mo. App. 450, 458; 240 S. W. 241; Lampert v. Judge & Dolph Drug Co., 238 Mo. 409, 419, 141 S. W. 1095; Reel v. Consolidated Inv. Co., 236 S. W. 43, 46.]

The cases just cited held that the usual definition of malice, to-wit, the intentional doing of a wrongful act without just cause or excuse means that the party charged had conscious knowledge when committing the act that it was wrongful. The general instructions given for plaintiff and the one for defendant defining malice covered the case in a general way and had no others been asked by defendant would have presented the ease to the jury with sufficient clearness. It is also clear to us that the same cases hold that to warrant the assessment of a punishment against a party either as punitive damages or by doubling the actual damages, the element of a conscious wrong doing or such recklessness that a conscious wrong doing is necessarily implied must- be present — not that he must know that his act is promoted by actual malice or ill-will but he must at least know that injury to some one is likely to result from his act. That being true, the instruction given on part of plaintiff that good faith and actual belief in the existence of facts which, if true, would justify the act, was no defense was erroneous and the one asked by defendant above set out which told the jury that good faith and actual belief that the dog had recently killed or chased defendant’s sheep, should have been given. We think good faith and honest purpose, if shown, refutes the inference of ‘intentional wrong implied from the intentional commission of the act and defendant had the right to have that issue presented to the jury. We do not mean to say that such proof would show no liability for

actual damages on the part of defendant but this is not a suit for actual damages and we will not pass on the question whether good faith and honest belief in the existence of facts which, if true, would justify the act could be shown as a defense to a claim for single damages but we do think that it may be shown to defeat a recovery under this statute which is penal in its nature and the wrong therein described is, under the authorities above cited, a conscious commission of a wrongful act.

The defendant asked and the court refused the following instruction: “The court instructs the jury that unless you believe and find from the evidence that defendant intentionally shot the dog of plaintiff knowing at the time that the shooting of the dog was wrongful, you will find the issues for the defendant. This instruction was properly refused because its language implies that the burden of proof was on plaintiff to show that defendant knew that his act was wrongful. As we have already said the proof of the intentional shooting of the dog placed on defendant the burden of showing that his act was not intentionally wrongful.

For the error noted the judgment will be reversed and the cause remanded.

Farrington and Bradley, JJ., concur.