Cadenhead v. Goodman , 148 Miss. 88 ( 1927 )

^* Corpus Juris-Cyc. References: Animals, 3CJ. p. 151, n. 3, 5, 6 New; p. 162, n. 16. G.S. Goodman, plaintiff in the court below, appellee here, sued J.L. Cadenhead for damages for unlawfully, willfully, and wantonly shooting with a firearm two bulls belonging to plaintiff, killing one and so maiming the other as to render it useless as a breeding animal, said damages amounting to one hundred ninety-five dollars.

Although written pleading is not required in a justice of the peace court, there was much pleading in this case which we deem unnecessary to state.

The justice of the peace entered judgment for defendant. The plaintiff appealed, and in the circuit court additional written pleadings were filed which we deem unnecessary to set forth. After issue joined and the taking of much proof, the jury returned a verdict in favor of plaintiff for seventy-five dollars, and judgment for said amount was entered.

There was much testimony tending to show that one of the bulls, "Old Jake," the older of the two bulls, was vicious. One of the witnesses, Bunk Jones, testified that Old Jake pursued him on a certain occasion, and he was forced to climb a cedar tree, where the bull kept him lodged for several hours.

There was much testimony that "Young Jake" had ever been disposed to disport himself in a rude, angry, and threatening manner; that on a particular day, Mrs. Harris, who had some cows, discovered these two bulls coming toward her and her children, and, according to her testimony, the bulls chased her, and she barely managed to escape them by closing the door of her residence. The bulls continued to chase about the place, having jumped out of the pasture on their side in order to consort with the Harris cows, which were pastured near by. Mrs. Harris screamed for help, and, her husband being busy with accounts at the store, J.L. Cadenhead, appellant here, went to the house, and he says that when he went to the scene the bulls were chasing the Harris cows; that he went in the house and got a shotgun loaded with No. 6 shot, shot in the air to shoo the bulls away, and, according to his testimony, the old bull "shooed." He testified that while the old bull was going away from him, apparently in perfect disorder, completely routed, that the young bull jumped the fence and fell in a pile of plows and old debris which had been piled up, and that he shot at old Jake. We quote a part of his testimony:

"Q. They were not making any attempt to bother you? A. No, sir; not a bit in the world. . . .

"Q. At the time you shot the bull was he advancing towards you? A. No; going away from me.

"Q. And not destroying any property? A. No, sir."

He testified that he did not know whether he hit Old Jake or not.

The proof further showed that Old Jake was wounded in such part of his anatomy, and to such extent, as to destroy his value as a breeding animal, and that Old Jake went to the slaughterhouse to be consumed as beef. There was some evidence that some flower pots and stands were knocked over.

Much testimony was offered to show that the bulls were fence jumpers, and vicious, especially Old Jake. On the other hand, plaintiff's wife and boy swore that the bulls were gentle and amicable, and that the boy rode the bulls and played with them. So there was a conflict in testimony, but none as to the conduct of the bulls at the time they chased Mrs. Harris into her residence.

Appellant, Cadenhead, first insisted that the case should be reversed because the circuit court was without jurisdiction, for the reason that, at one time, on cross-examination, appellee said his two bulls were worth two hundred fifty dollars, but, when a motion was made to dismiss the case, the court developed that plaintiff's claim for damages was one hundred dollars for each bull, Young Jake having died subsequent to the shooting, and Old Jake having been "disqualified" as a breeder and sold for beef; and the jury's verdict was for seventy-five dollars.

We do not think there is any merit in appellant's contention that appellee, plaintiff in the court below, was minimizing his damages in order to confer jurisdiction on a court of a justice of the peace.

On this testimony of Cadenhead, we cannot see that there is any reversible error in the case, because the court submitted the case to a jury, and, on the testimony of the defendant himself, at the time he shot at Old Jake, the bull was not engaged in any act of viciousness or violence, or doing any damage to person or property. The two bulls had severely frightened Mrs. Harris, but one may not shoot a valuable domestic animal in punishment of a wrong or damage already committed by the animal, or out of a spirit of vengeance, after the animal has trespassed, even though he might have had the right to shoot the offending animal while engaged in the act.

The proof showed that the plaintiff's damages, on account of Old Jake, were one hundred dollars. The jury's verdict was for seventy-five dollars. A peremptory instruction should have been given the jury to find for the plaintiff in such damages as were sustained by him in the shooting of Old Jake.

We think it would be unprofitable to discuss the instructions complained of in this case, as the verdict is warranted, leaving out of view the question of damages as to the young bull.

Affirmed.