Graham v. Smith

• Decision Date: 08 March 1897
• Citation: 28 S.E. 225,100 Ga. 434
• Parties: GRAHAM v. SMITH.
• Court: Georgia Supreme Court

28 S.E. 225

100 Ga. 434

GRAHAM v. SMITH.

Supreme Court of Georgia

March 8, 1897

Syllabus by the Court.

The owner of a dog has such a property in it as will enable him to maintain an action of trover for its recovery in case of its wrongful conversion.

Error from superior court, Richmond county; E. H. Callaway, Judge.

Action by W. W. Smith against Andrew S. Graham. Judgment for plaintiff. Defendant brings error. Affirmed.

Wm. D Van Pelt, for plaintiff in error.

Sam. F Garlington, for defendant in error.

LITTLE J.

The official report states the facts. It is somewhat difficult to determine the status of the dog as property in this state. It is not difficult to show that the owner has a property right in the animal, but it is difficult to define the nature and extent of it. This right seems to be better defined at common law than it is by the construction which this court has put upon our statutes. Our constitution (article 7, § 2, par. 1) impliedly recognizes dogs as property. It provides that the general assembly may impose a tax upon such domestic animals as, from their nature and habits, are destructive of other property. It is true that this power to tax partakes of the nature of a police regulation, and is made the exception to our uniform and ad valorem system of taxation; but the words giving the power evidently intend to and do denote the dog as a domestic animal, and, by reference, class this animal with other property. Section 2965 of the Code recognizes the ownership of dogs, in that it makes the owners liable to suit for the recovery of damages for injuries inflicted by their dogs under certain circumstances. Section 4402 of the Code makes the dog, eo nomine, a subject of simple larceny. This provision, however, does not seem to bring the dog as property to any high degree, because, in speaking of all other domestic animals, it is provided, "and also a dog" may be the subject of simple larceny, implying two things,--that he was not, therefore, a subject of simple larceny, nor was he a domestic animal. To one of us, at least, a possible reason why the dog may not, by common consent, have been accorded a place among domestic animals not more worthy and even less valuable, is suggested by a learned writer (Grotius) when he says, "The reason why some creatures fly and avoid us is not the want of gentleness and mildness on their part, but on ours." In Jemison v. Railroad, 75 Ga. 444, which was an action against a railroad company for the negligent and malicious killing of a dog by the operation of a train of cars, it was held that a dog is property only in a qualified sense, and that such an action would not lie; and in the case of Patton v. State, 93 Ga. 111, 19 S.E. 734, it was held that the willful and malicious killing of a dog was not an indictable offense, under section 4627 of our Code. In the latter case, however, the ruling was based on the construction that the subjects of that particular statute were inanimate property. In the case, however, of Manning v. Mitcherson, 69 Ga. 447, it was ruled that the law of this state contemplated that, to have property in animals which are wild by nature, the owner must have them within his actual possession, custody, or control, and this may be done by taming, domesticating, or confining them; and it was ruled also in that case that a possessory warrant would lie for the recovery of a bird when so in possession; and animals, by that decision, come under the same class. It is therefore apparent that an owner has property in his dog, and that this property is sufficient to support an action to recover possession of it when such has been lost.

Dogs have been held to be property by the courts in the District of Columbia, in Kansas, Texas, Connecticut, Tennessee Michigan,...