# Stull v. Porter > Oregon Supreme Court · October 7, 1919 · 100 Or. 514 URL: https://www.frixlaw.com/law-library/cases/6907385 ## Case - **Full name:** STULL v. PORTER - **Court:** Oregon Supreme Court - **Decided:** October 7, 1919 - **Citations:** 100 Or. 514; 184 P. 260 - **Precedential status:** Published - **Opinion:** On the merits by Johns - **Judges:** Bean, Brown, Burnett, Coke, Coos, Johns - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6907385 ## Opinion text Affirmed April 12, 1921. On the Merits. ( 196 Pac. 1116 .) Prom Coos: John S. Coke, Judge. Department 2. As the owner of a collie dog named Trixie and of a shepherd and collie known as Banger, the plaintiff, on January 9, 1919, commenced an action against the defendants, in the Justice Court, District No. 2, County of Coos, in which she alleged that they did “unlawfully, willfully, and maliciously” kill the dogs, and prayed for judgment for $250. The defendants Porter and Bunch filed an amended joint answer, in which they denied all of the material allegations of the complaint, or that the dogs were of any value. A jury trial was had, at which neither of the *520 defendants testified, and a verdict was found for the plaintiff and against both defendants, for the full amount of her claim, upon which judgment was entered. From this judgment the defendant Porter appealed to the Circuit Court, where the cause was tried on March 3, 1919. After the jury was sworn, the attorney for the plaintiff stated that— “This is a joint tort, and we claim the rule of law is that anyone who aids or conspires in the commission of an act is responsible. We shall prove that Porter did aid and conspire, and we are proceeding upon the theory that a joint tort was committed.” At this trial the defendant Bunch testified that he alone shot the dogs, and that the defendant Porter had nothing to do with the killing of them. Among other instructions to the jury, the court gave the following : “You are instructed that a joint tort is alleged, and if the defendant, Tom F. Porter, aided, commanded, advised, or countenanced the killing of either one or both of these dogs, or if the defendant, Tom F. Porter, approved of it, after it was done, if it was done for Ms benefit, he would be liable in the same manner and to the same extent, as if he had done the actual Mlling with his own hands. But the mere knowledge that a tort is being committed against another, will not be sufficient to establish liability. That is, the meaning of that rule as applied to this case would be, that a mere knowledge on the part of Tom Porter, that a tort had been committed by Rosco Bunch, would not render Porter liable. Nor will the mere presence of a person at the commission of a tort or wrongful act by another, render him liable as a participant. Mere acquiescence in the commission of a tort, after the act, does not make the party acquiescing therein liable therefor, since to be liable, he must not only assent to the wrong, but the act must have been done for his benefit, or have been of a *521 nature to have benefited firm. Ratification would not be established from mere knowledge, approval, or satisfaction. To hold one responsible for a tort not committed by his orders, his adoption of and assent of the same must be clear and explicit and founded on a clear knowledge of the tort which has been committed. “If you find the defendant, Tom F. Porter, was actively engaged or actually participated in the killing of the dogs, or either of the dogs, then the court instructs you that he would be liable to the plaintiff for whatever damage she has suffered by reason of his acts, or, if you should find that he aided, commanded, advised, or countenanced the killing of one or both of these dogs, or that he approved of it after it was done, if it was done for his benefit, then he will also be liable for whatever damages the plaintiff has suffered by reason of his acts. If, on the other hand, the defendant Porter did not participate in the killing of the dogs, and did not aid, command, advise or countenance the killing of them, or did not approve of the killing after it was done, or that it was done for his benefit, then the defendant Porter would not be liable. In other words, he must have participated in the killing, or aided or abetted or countenanced the killing of the dogs, or one or both of them.” This jury returned a verdict against defendant Porter for the full amount, upon which judgment was entered, from which Porter appeals, assigning as error the giving of the above instructions, contending that in a willful tort there can be no liability unless there was a concert of action and that “the doctrine of ratification of torts does not apply to a willful tort such as the killing of animals,” and that “it was error to instruct on a point not covered by the evidence” or “to give contradictory instructions.” Other assigned errors were waived. !Ajtirmed. *522 For appellant there was a brief over the names of Mr. John D. Goss, Mr. John C. Kendall and Mr. Herbert S. Murphy, with an oral argument by Mr. Goss. For respondent there was a brief over the names of Mr. T. T. Bennett and Mr. Ben Swanson, with an oral argument by Mr. Bennett. JOHNS, J. Bunch having shot the dogs, it is the theory of the defendant that there is no proof that Porter and Bunch were acting together, and that “there is no evidence of ratification by Porter or that the killing was done for his benefit.” The instructions followed Perkins v. McCullough, 36 Or. 146 ( 50 Pac. 182 ), in which, as to the liability of joint tort-feasors, this court held that— “All persons who aid, command, advise, or countenance the commission of a tort, or approve it, after it has been committed, if for their benefit, are as fully liable as if they had personally committed the objectionable act.” The question there presented was, whether there was any evidence from which the jury could reasonably find that Matlock and the defendant B. F. McCullough acted in concert with reference to the alleged conversion. The case grew out of a fraudulent sale of cattle, from which Matlock received the proceeds and applied them upon a debt. Upon the facts there, the court says: “While the sale may have been for Babb’s benefit, so far as the proceeds derived therefrom reduced his indebtedness, it also benefited Matlock to the extent of reducing his demand by the sum so received. He was in possession of the cattle when they were sold, and, the proceeds thereof having been paid to him, the jury might fairly and legitimately infer from the averment of the answer, when considered in connec *523 tion with the other facts and circumstances of the case, that the sale was made for his benefit, and that, by accepting the proceeds thereof, he was cognizant of and approved the conversion, thereby rendering himself liable as a joint trespasser.” The decision in Perkins v. McCullough is founded upon the case of Judson v. Cook, 11 Barb. (N. Y.) 642. In that case, the president of a bank at whose suit an attachment had been issued and levied upon the property of the defendant therein, when applied to by the constable for directions in regard to selling the property, told him to do his duty and directed the attorney of the bank to examine the question and the facts in relation to a prior lien upon the goods and to act upon his judgment. Whereupon the attorney instructed the constable to sell the goods, and the president of the bank attended the sale and bid off a part of the property. It was there held that— “This was'sufficient to connect the president with the taking or detaining of the goods, and that he was liable in an action therefor.” 1 Cooley on Torts (3 ed.), page 213, is as follows: “When several participate, they may do so in different ways, at different times, and in very unequal proportions. One may plan, another may procure the men to execute, others may be the actual instruments in accomplishing the mischief, but the legal blame will rest upon all as joint actors. In some cases one may also become a joint wrongdoer by consenting to and ratifying what has been done by others. But this cannot be done by merely approving a wrong, or by expressing pleasure, or satisfaction at its being accomplished. “In order to constitute one a wrongdoer by ratification, the original act must have been done in his interest or been intended to further some purpose of his own.” *524 At page 244, the author says: “All who actively participate in any manner in the commission of a tort, or who command, direct, advise, encourage, aid or abet its commission, are jointly and severally liable therefor. All who aid, advise, command, or countenance the commission of a tort by another, or who approve of it after it is done, are liable, if done for their benefit, in the same manner as if they had done the act with their own hands; and proof that a person is present at the commission of the trespass without disapproving or approving of it, is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his countenance, and approved it, and was thereby aiding or abetting the same. One who in any manner indicates his desire that an act be done may be said to request it; and who does anything in furtherance of an act may be said to aid or abet it.” Applying such law to the facts in the instant case, the plaintiff was the owner of the dogs, and proof of their value is conclusive. At the time of the killing, the defendants were friends and partners engaged in getting out ship-knees on the opposite side of the West Fork of Coos River from the place where the dogs were killed. The defendants testified that about 11:30 a. m:. they started across the river in a rowboat to g’o to Porter’s home for their lunch. Abont midway of the stream, they saw a wild deer, which plaintiff’s dogs were chasing, whereupon, they increased their speed and landed their boat on the side of the river near where the dogs were running the deer. The defendant Bunch testified that after landing he went a short distance to what is known as the “apple-house,” where he got his rifle; that he then went up the hill, and that he fired six or seven shots, killing the dogs. Defendant Porter testified that upon get *525 ting out of the boat he picked np a club, went up the hill and down the river for the purpose of intercepting the dogs and stopping the chase; that he came very near to them, and that one of the dogs was close behind the deer; that he did not speak to them or do anything to call them off; that the deer and the dogs made a short circle and he then heard the shots, and that in four or five minutes he returned to the landing and found Bunch there. Bunch testified that he brought his rifle with him to the boat. Porter said that he did not see Bunch with the gun. Both testified that after their return to the boat nothing was said by either of them about the deer, the dogs, the shooting, or as to who fired the shots. If their testimony is true, upon their return to the boat they became like the proverbial clam or the meek and lowly oyster. The dogs were chasing the deer, and they were killed on Porter’s lands. There is strong evidence tending to show that he had said he would kill any dog that he ever caught chasing deer, and that a number of dogs in the community had recently been killed. 1. To render a person liable as a joint tort-feasor by ratification, there must be evidence tending to show that the wrongful act was done for his benefit, and that he approved it. 2. On cross-examination concerning the dogs, the defendant Porter testified: “Q. She [meaning Trixie] was a nuisance? “A. Yes, sir. “Q. Just the same as Banger? “A. Yes, sir. “Q. And you thought it was a perfectly good way of getting rid of her and that it was a good job? “A. Yes, sir. Whoever killed her.’’ *526 Exclusive of the fact that Porter had said he would kill any dog found chasing deer, and he saw the dogs running a deer on his premises, and that he said the dogs were “a nuisance,” there is no evidence that-he would have derived any special, direct, or pecuniary benefit from the killing of them, or that he had any greater interest in the matter than any other person in the community. It was not his deer that the dogs were chasing, and no personal damage was done to him. The benefit which the law contemplates must be something special, pecuniary, other and different from that which is derived by the general public. Tested by this rule, appellant contends that there is no evidence tending to show that the dogs were killed for the benefit of Porter, and that the jury should not have been instructed that “the act must have been done for his benefit, or have been of a nature to have benefited him.” The evidence is conclusive that the killing of the dogs did meet with his hearty approval. That appears from his own testimony. Defendants had left their work to cross the river and go home for lunch, and they first saw the dogs when the boat was in about the middle of the stream. They hurried across and landed the boat. Bunch went to the apple-house, got his rifle, went above, on the hill, and in a few minutes shot the dogs, about 150 yards from the place where the boat was landed. On leaving* the boat, the defendant Porter picked up a club and went up the hill and down the river in an opposite direction, with a view, as he says, of intercepting the dogs and stopping the chase; yet, although he was close to them, he did not speak, or call the dogs, or try to stop them. The testimony indicates that the defendants were not away from the boat more than ten minutes. It is shown that the bullets which killed the *527 dogs were shot from the shells of the same size that were used in Bunch’s gun. Porter’s house, to which they were going for lunch, was on the hill, a very short distance above the place where the dogs were killed, and yet, after the killing they returned below to the boat and again went back up the hill to Porter’s house. Although it is true that they claim to have returned to get some tools, the stubborn fact remains that they did speed up the boat; that when they landed Bunch went direct to the apple-house, got his gun and shot the dogs; that the defendant Porter picked up a club and went in another direction; that soon after the killing, both Bunch and Porter returned to the boat, after which they again went up the hill to Porter’s home for lunch. This evidence, coupled with the fact that Porter had previously said that he would kill any dog found chasing deer, that the dogs were a nuisance, that “whoever killed her it was a good job,” the further fact that his premises joined those of the plaintiff, together with his own conduct, his evasive answers, his attempt to conceal the killing, and the nature of his testimony, with all the surrounding facts and circumstances, is strong proof from which the jury could well have found that Porter was acting in concert with Bunch at the time the dogs were killed. Again, the evidence is undisputed that the dog Banger was shot over the right eye and that the bullet came out on the right shoulder; that Trixie was shot in the “sticking place,” and that the bullet came out near the tail-bone. Such physical facts tend strongly to support the theory of the plaintiff that the dogs were not shot while running the deer, and that Trixie was killed while sitting on her haunches. The amount involved is not large, but we have read the testimony in this case with care, and we are con *528 vinced from tbe record tliat Porter and Bunch were acting in concert in the killing of the dogs, and that any error in the instruction upon the question of benefit was not prejudicial to Porter. The judgment is affirmed. Affirmed. Rehearing Denied. Bean, J., concurs. Brown, J., concurs in result. Burnett, C. J., dissents. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6907385. Public record. Not legal advice.