Alabama Great Southern R. Co. v. Wedgworth

• Decision Date: 12 October 1922
• Docket Number: 2 Div. 803.
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. WEDGWORTH.
• Court: Alabama Supreme Court

94 So. 549

208 Ala. 514

ALABAMA GREAT SOUTHERN R. CO. v. WEDGWORTH.

2 Div. 803.

Supreme Court of Alabama

October 12, 1922

Rehearing Denied Dec. 7, 1922.

Appeal from Circuit Court, Hale County; S. F. Hobbs, Judge.

Action for damages by John B. Wedgworth against the Alabama Great Southern Railroad Company. From a judgment for plaintiff defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Smith Wilkinson & Smith, of Birmingham, and Evins & Jack, of Greensboro, for appellant.

Thomas E. Knight and Thomas E. Knight, Jr., both of Greensboro, for appellee.

SOMERVILLE J.

Defendant's pleas 3 and 4 set up plaintiff's failure to pay the license tax required by the act of September 30, 1919 (Gen. Acts 1919, p. 1077), for keeping a dog; the theory of the pleas being that such failure deprived the dog of its status as property, and nullified the owner's right of action for the injury complained of.

The Dog Law of 1919, above referred to, requires the owner or keeper of every dog to have him annually registered, and to pay an annual registration fee, as provided, and to procure an identification tag to be worn by the dog. It is further declared to be unlawful for any person to keep or harbor any dog not regularly licensed, as provided; and it is made the duty of sheriffs, constables, and license inspectors to kill on sight any dog found by them running at large, not wearing the identification tag showing the registration number of the dog, or not wearing a muzzle, as provided by the act.

Section 10 of the act provides:

"That each dog registered and tagged in accordance with the provisions of this act is hereby declared to be property, and the owner or keeper of such dog shall, in case such dog is stolen, injured or killed, have the same protection as to his property rights in such dog as of any other live stock, and any person who shall steal, kill, injure or entice away from the owner thereof, any dog registered and tagged as provided in this act shall be subject to the same penalty as for the same offense committed against any other live stock."

Appellant's contention is that this provision of the act, when read in connection with the other provisions referred to, evinces a clear legislative intent to outlaw dogs not kept in compliance with the law, to the extent at least of denying to their owners any civil remedy for negligent injuries done to them by other persons. This argument is plausible enough, but we are nevertheless of the opinion that the language of the act does not necessarily carry such an implication. Substantially similar provisions were placed in the Dog Law of 1915 (Gen. Acts 1915, p. 599), but long before that the property status of dogs had been declared by this court, and in Louisville & N. R. Co. v. Fitzpatrick, 129 Ala. 322, 29 So. 859, 87 Am. St. Rep. 64, it was held that a dog is property, and that its owner may maintain an action against a railroad company for its negligent killing, citing the early cases of Parker v. Mise, 27 Ala. 480, 62 Am. Dec. 776, and White v. Brantley, 37 Ala. 430. The Fitzpatrick Case, supra, has been followed in the recent case of Southern Ry. Co. v. Harris (Ala. Sup.) 93 So. 470. Courts do not favor any construction of a statute which will destroy valuable rights pre-existing, and such an intendment will not be indulged unless it be a necessary implication from the language used, or essential to the effective operation of the law. Crowder v. Fletcher, 80 Ala. 219; Beale v. Posey, 72 Ala. 323.

In Chapman v. Decrow, 93 Me. 378, 45 A. 295, 74 Am. St Rep. 357, under the provisions of a law substantially like ours, the owner of a dog brought trespass for its intentional killing by the defendant, who pleaded that the dog was not licensed, and therefore there was no property right in it; that anybody could kill it, and that the owner had no civil redress. The...