Dudley v. Love , 60 Mo. App. 420 ( 1895 )

Eombauer, P. J.

The defendants are partners engaged in business as butchers, and as such operate a slaughterhouse in the vicinity of a public road. They are sued in this action for the value of a hound belonging to plaintiff, which, as the statement alleges, was killed by them wantonly, maliciously and negligently. Upon the trial the plaintiff recovered a verdict for the sum of eight dollars, and the defendants appeal, and assign for error that the verdict is not supported by sufficient evidence, and that the court erred in refusing an instruction offered by them.

On part of the plaintiff there was direct evidence tending to show that the defendants put out poisoned meat in or near their slaughterhouse, and inferential evidence to the effect that two hounds belonging to the plaintiff ate of the meat, and that one died in consequence. The defendants claim that the evidence was insufficient to- charge. Love, one of the defendants, as his connection with the putting out of the poison was not shown. This assignment may be disposed of by stating that the defendant, Smith, himself testified that his codefendant, Love, got the poison for Lafferty one of their employees, and that they knew Lafferty was going to put it out in the slaughterhouse. Aside from this, however, the fact is shown that the act was done by one of the partners, in furtherance of the partnership business, and for its benefit, and this would have been sufficient to charge Love. Case v. Fogg, 46 Mo. 44, 48. Wilson-Obear Gro. Co. v. Cole, 26 Mo. App. 5, 7.

Touching the second assignment of error it suffices to say, that the court refused all the instructions asked the plaintiff, and on its own motion charged the jury in conformity with the law, as stated by us in the analogous case of Gillum v. Sisson, 53 Mo. App. 517, which came up from the same circuit. The defendants then prayed the court to instruct the jury as follows: “If the jury believe from the evidence in the cause that defendants placed poison on the inside of their slaughterhouse in a well guarded place, so as to protect same from dogs, and that defendants kept said slaughter house closed, then your verdict must be for the defendants, even though you may believe that said dog got. inside of said slaughterhouse, and ate of the poison from the effects of which he died.” The refusal of this-instruction constitutes the second assignment of error.

The court did not err in refusing this instruction,, as it was misleading, to say the least. It stated in effect that, if the defendants placed poison in a. well guarded place inside of the slaughterhouse, the plaintiff was not entitled to recover; non constat, but. that defendants may have placed other poison which was neither well guarded nor inside of the slaughterhouse. The court properly conditioned the plaintiff’s, right of recovery, by instructions given on its own motion, on the facts that the defendants negligently put out poison in a place, where they might reasonably anticipate the plantiff’s dog would get at it, and that. the plaintiff’s dog actually ate the poisoned meat thus placed, and died from its effects.

Judgment affirmed.

All concur.