221 P. 847 | Utah | 1923
Lead Opinion
From a judgment in favor of plaintiff for $125 the defendant appeals. The case was tried before the court without a jury. The findings of the court follow the averments of the complaint, and are in substance: That the defendant was at all times mentioned in the complaint a corporation under the laws of Utah; that on August 14, 1922, plaintiff was the owner of a full-blooded Cocker spaniel dog of the value of $125, and that plaintiff had paid for and procured a license from the city treasurer of Salt Lake City to own and maintain this dog within the city limits of Salt Lake City. That on said August 14, 1922, at Salt Lake City, Utah, at the in-
The court further found that a city ordinance of Salt Lake City made it unlawful for any person to kill or cause to be killed a registered dog without the consent of its owner or possessor. The conclusions of law were in accordance with the findings.
The negligence of the driver of defendant’s truck, and that such negligence was the proximate cause of the dog’s death, is clearly stated in the findings, and as the evidence fully supports the findings in that regard, we do not deem it necessary to review the evidence on that subject.
It is insisted by defendant that there is no evidence upon which a finding can be predicated that the automobile was being driven or operated by any servant of defendant acting within the scope of his authority. Again we do not deem it necessary to enter into details, save to say that the record contains substantial evidence that the car belonged to defendant, and that it was being operated by defendant in the usual course of its business. The evidence thus adduced by plaintiff is undisputed.
Another proposition advanced by defendant is “that there was no property right invaded by the defendant, because a dog is not property within the meaning of that term as it is used in an action for damages for negligently killing such an animal.”
It is true, as counsel say, that many years ago the property in a dog was considered so base as not to be the subject of larceny, but those days have passed, and to-day dogs have a well-established legal status.
"By the common law, as well as by the law of most, if not all, the states, dogs are so far recognized as property that an action will lie for their conversion or injury.” Sentell v. Railroad, 166 U. S. 698, 17 Sup. Ct. 693, 41 L. Ed. 1169.
“The owner of a dog has such property in him that he may maintain an action for the wrongful hilling or injuring him.” 3 C. J. p. 153, § 490.
Even an unlicensed dog is not a trespasser on the highway,
“The law now recognizes that dogs have pecuniary value, * * * as much so as horses and cattle, or other domestic animals.” Roos v. Loeser, 41 Cal. App. 782, 183 Pac. 204, citing Ten Sopen v. Wallcer, 96 Mich. 236, 55 N. W. 657, 35 Am. St. Rep. 598.
In Roos v. Loeser, supra, it is said:
“Considerable sums of money are invested in dogs, and they are the subject of extensive trade. Aside from their pecuniary value their worth is recognized by writers and jurists. Cuvier has asserted that the dog was perhaps necessary for the establishment of civil society, and that a little reflection will convince one that barbarous nations owe much of their subsequently acquired civilization to the dog. Prom the building of the pyramids to the present day, from the frozen poles to the torrid zone, wherever man has wandered there has been his dog.”
How general, well-nigh, universal, the recognition of the bond between man and his most capable, loyal, and loving slave, servant, and companion is evident in the literature of the ages.
In peace the dog finds content in the humblest service, ever faithful, ever true; in warfare he glories in every opportunity to do his master’s bidding, and never counts the cost. Above all other mortal creatures is the dog “faithful unto death.” No sense of imminent peril, no pangs of hunger, no neglect or abuse by or from the one to whom the dog has given his affection can shake the full measure of his devotion, dim the light that brightens his eyes, or dampen the ardor of his love. “Service” is his creed.
With unappreciative mind and ungrateful heart many take the performance of this greatest of dumb friends as a matter of course, yet are there some high and sensitive souls, like that of St. John Lucas, whose concept of a dog’s devotion was ^o clear that hé could write:
“This prayer at least tbe gods fulfill, Tbat wben I pass the flood and see Old Charon by the Stygian coast Take toll of all the shades that land, Your little, faithful barking ghost May leap to lick my phantom hand,”
“He was rather small, short legged dog, and was white in color, with red spots on him; he had a smooth head on top, and very long ears, very large feet, and had long hair on his chest, and hair on his feet, and hair on his elbows. His hair was silky, very fine, and he had no odor that dogs usually have, and he had great, big, large, brown eyes, which looked like human eyes; a very intelligent dog. He was one of the prettiest dogs I ever saw.”
An odorless dog with human eyes! Fortunate was the defendant that the case was not tried before a sympathetic jury, and that a stony-hearted judge fixed the amount of damages! Several competent witnesses testified to the dog’s value as being from $200 to $250. The amount found by the court was therefore not excessive as claimed by defendant’s counsel. The judgment is affirmed.
Concurrence Opinion
I unhesitatingly and heartily concur in the encomium of the CHIEF JUSTICE on man’s faithful and loyal friend and companion, the dog. In view of my vivid recollection of the early days on a pioneer farm in Iowa where my only playmate and companion was old faithful Carolus, I could not do otherwise. Many a cold day his fur provided warmth, and his fleas kept me active. After conceding everything that is said of the dog, however, I nevertheless cannot overlook the fact of the dog’s natural and inherent propensities. Á dog, even one with “human eyes,” when roaming the streets, cannot be regarded the same as a human being or a child. A dog roaming at large on the city streets is largely a nuisance. But be that-as it may, the presumption is that a dog while running at large on the streets will take care of himself, and the general experience of men is that he does so. One driving upon the streets therefore may act
