Jemison v. The Sw. R.R.

• Decision Date: 31 October 1885
• Citation: 75 Ga. 444
• Parties: Jemison. vs. The Southwestern Railroad.
• Court: Georgia Supreme Court

75 Ga. 444

Jemison. vs. The Southwestern Railroad.

Supreme Court of the State of Georgia

OCTOBER TERM, 1885.

Railroad. Dogs. Property. Before Judge Simmons. Bibb Superior Court. April Term, 1885.

Reported in the decision.

S. H. Jemison, in propria persona, for plaintiff in error.

Lyon & Gresham, for defendant.

Hall, Justice.

This was an action on the case to recover damages from the railroad company for negligently running its engine and train of cars over and killing a pointer dog belonging to the plaintiff. At the trial, the court, on motion, non suited the case, as it seems, upon two grounds: 1st. Because dogs are not property in the general or legal acceptation of that term, so as to entitle the owner to maintain a suit for their destruction or injury by negligence, especially where the defendant is a railroad company, and the alleged damage results from the running of its locomotive or cars, or the use of other machinery belonging to it; and in the case of a dog, the ordinary presumption does not arise that the injury, upon the fact being shown, was the consequence of a want of ordinary care and diligence on its part. 2d. Be-cause the facts in the case show that the killing of the dog could not have been avoided by the use of all ordinary care and diligence on the part of defendant\'s employes in charge of the train, he having jumped upon the track so near to the train that it was impossible to check its speed and to prevent its running over and killing him.

1. That a dog is not property, except in a qualified and restricted sense, and for certain specified purposes, is undoubtedly true, both at the common law and under our statutes. That the owner, by the common law and under our Code, may maintain trespass vi et armis for wantonly and maliciously killing his dog, is not questioned, but it is equally clear by that law that he could not maintain case for its unintentional, though negligent, destruction. By that law, such an animal is not the subject of larceny, and slander could not be brought upon a charge of stealing a dog. By an express provision of our statute, however, all " domestic animals fit for food, and also a dog, '' are made " subjects of simple larceny." Code, §4402. Dogs are not generally the subjects of taxation. The constitution of 1877, Code, §5181, after declaring that taxation shall be ad valorem on all property within the limits of the state subject to be taxed, and that the tax shall be levied and collected under general laws,...