Wednesday Writs: The Eulogy of the Dog Edition

Old Drum Memorial, Burden v. Hornsby Case

L1: The money that a man has he may lose. It flies away from him, perhaps when he needs it most. A man’s reputation may be sacrificed in a moment of ill-considered action. The people who are prone to fall on their knees to do us honor when success is with us may be the first to throw the stone of malice when failure settles its cloud upon our heads. The one absolute, unselfish friend that man can have in this selfish world—the one that never deserts him, the one that never proves ungrateful or treacherous—is his dog.

This is an excerpt from “The Eulogy of the Dog,” penned by George Graham Vest. This is not a passage found in some literary novel, or non-fiction work on the history of canine companionship, but rather in the transcript of closing statements in a civil trial in the Warrensburg, Missouri Court House in 1870.

Our case of the week is not a lofty Supreme Court opinion of great societal importance. Burden v. Hornsby is the tale of the untimely death of a beloved hunting dog named Old Drum, and his master’s unrelenting quest for justice for the black and tan hound.

Old Drum belonged to a man named Charles Burden. Burden’s neighbor, a sheep farmer named Leonidas Hornsby who also happened to be Burden’s brother-in-law, was known to have threatened to shoot any stray dog who came onto his land and upset his sheep. On October 28, 1869, Hornsby followed through, though he claimed that he recognized the dog as belonging to a neighbor and only wished to scare it off. To that end, Hornsby directed his young nephew, Dick Ferguson to load the gun with corn before shooting. After the shot, the dog allegedly yelped in pain, hopped a fence, and was gone.

Burden heard the shot and the yelping dog as well. Worried, he called his pack of hunting dogs. When the dogs answered his call, his beloved Old Drum was not among them. Burden went searching for Old Drum. He asked Hornsby if he had seen the dog, and he replied he had not. Pressed further about the gunshot and the yelping dog, Hornsby told Burden it was not Old Drum but the dog of another neighbor. Reportedly, Burden then told Hornsby, “I’ll go and see it may not be my dog. If it ain’t it’s all right. If it is it’s all wrong and I’ll have satisfaction at the cost of my life.”

Sadly, Burden found his Old Drum lying dead by a creek with his head in the water. The dog had a scattering of gun shot wounds, and it seemed obvious to Burden that he had been dragged to the spot buy the creek judging by the condition of the fur. Burden also noted the presence of several sorrel hairs; Hornsby owned a sorrel mule.

Burden filed suit against Hornsby, asking the local justice of the peace for $100 damages. The amount was reduced to $50 because of jurisdictional limits. The first jury in November 1869 could not decide whether Hornsby was liable for having directed his nephew to fire the shot. A second trial was held in January 1870. Both sides hired lawyers. Burden prevailed and was awarded $25 plus court costs.

Hornsby appealed, and a second trial was held that spring at the Court of Common Pleas. Both sides hired new lawyers. Hornsby testified that he and his nephew had gone to the site where the dog’s body was found and found led bullets. The Court ruled in his favor this time, awarding him court costs. But Burden would not let go of his quest for justice for Old Drum, and appealed for a new trial, which was granted. The fourth trial in the case of Burden v. Hornsby was held at the Old Johnson County Court House in September 1870.

By this time, the counsel at this trial was something of a who’s who in Missouri legal history. Burden had four lawyers, one of which was the above quoted George Graham Vest. At this trial, Hornsby admitted to shooting a dog, but insisted it was not Old Drum though no other dead dog was found. Hornsby also presented witnesses who claimed to have seen Old Drum at another farm sometime after the gunshot.

At the conclusion of the trial, Vest delivered a closing statement which contained no argument of fact or even mention of Old Drum himself. His speech, which became known as The Eulogy of the Dog, was a general tribute to man’s best friend. The jury delivered a swift verdict in Burden’s favor.

The case was appealed again, to the Missouri state Supreme Court, who affirmed the verdict. Burden had achieved justice for his beloved Old Drum, and fortunately, it did not cost him his life.

George Graham Vest went on to be a four-term United States senator, where he was known for his efforts to protect Yellowstone National Park.

In 1958, a statue of Old Drum was erected outside of the Johnson County Court House.

L2: New York enacted liability protections for health care providers from suits stemming from following COVID-19 guidelines, such as lack of PPE or testing kits. Oregon’s health care provider community is asking for the same.

L3: My personal favorite “law” news of the week: Detective Stabler is coming back! 

L4: Porn in Utah must now come with a warning label, according to a new law.

L5: Police may pull over a car if the owner’s drivers license is suspended, regardless of who is driving, per an 8-1 SCOTUS decision. Justice Sotomayor was the lone dissent.

L6 In another 8-1 ruling, federal workers get a win against age discrimination.

L7: Former model, current wife of John Legend, and non-law school graduate Chrissy Teigen is now a TV judge. As the article notes, she is not a real judge, and as the article further notes, neither is Judge Judy (Judy is, however, an actual lawyer.)