Julian v. DeVincent

• Decision Date: 08 November 1971
• Docket Number: No. 13043,13043
• Citation: 155 W.Va. 320,184 S.E.2d 535
• Court: West Virginia Supreme Court
• Parties: William F. JULIAN v. Frank DeVINCENT et al.

Page 535

184 S.E.2d 535

155 W.Va. 320

William F. JULIAN v. Frank DeVINCENT et al.

No. 13043.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 14, 1971.

Decided Nov. 2, 1971.

Dissenting Opinion Nov. 8, 1971.

Syllabus by the Court

In order to recover damages for the loss of a dog the market value, pecuniary value or some special value must be proved and the general rule is that damages for sentimental value or mental suffering are not recoverable.

Oakley J. Hopkins, Morgantown, for appellants.

Don J. Eddy, Morgantown, for appellee.

BERRY, Judge:

This is an appeal from a final judgment of the Circuit Court of Monongalia County, West Virginia, which awarded William F. Julian, hereinafter referred to as appellee, $261.50 for the death of his dog which was killed by a dog owned by the appellants, Frank DeVincent and Emily DeVincent. This Court granted an appeal and supersedeas and the case was submitted without argument on the appellants' brief September 14, 1971, for a decision of this Court.

The case was appealed to the Circuit Court from a judgment of a justice of the peace court and tried by the circuit court in lieu of a jury upon a stipulation of facts by the parties. It appears from the stipulation of facts recited in the record by the trial court that the appellants owned a large dog which had attacked two persons before the incident involved in this case. On the day in question appellants' dog, which was running at large, ran up onto the appellee's porch, attacked and killed his small dog. No statement with regard to the age of the appellee's dog is contained in the record.

The Circuit Court, in awarding damages to the appellee, stated that the value of the dog was $178.70, which was the exact amount of judgment rendered by the justice of the peace and itemized in the record. This is the only evidence contained in the record with regard to damages, and is itemized as follows: 'Surgery & Care (Dr. Doza Mgt.) $49.00, Burial and Exam (Dr. Stewart Mgt.) $29.70, Plus Sentimental value, Mental Cruelty of Julians children $100.00', a total of $178.70. To this amount the Circuit Court added $75 for damages to the upholstery of appellee's car caused by blood from the dog presumably while being transported to the veterinarian. The appellee's dog had been registered but there was no assessed value placed on the dog for taxation purposes.

The appellants contend that there can be no recovery of any amount for the value of the dog because of the provisions of Code, 19--20--12, as amended, which reads in part as follows: '* * * Any person whose dog shall be killed or injured wrongfully or unlawfully by any other person shall have a right of action against the person who shall so kill or injure such dog, but in no case can recovery be had in excess of the assessed value of such dog.' However, the following section of Code, 19--20--13, as amended, provides: 'Any owner or keeper of any dog who permits such dog to run at large shall be liable for any damages inflicted upon the person or property of another by such dog while so running at large.' Code, 19--20--1, as amended, provides that any dog above the age of six months can be and is hereby declared to be personal property under the laws of this state.

It should be noted that Code, 19--20--12, as amended, which is primarily concerned with protection of registered dogs and criminal offenses in connection therewith, deals with recovery in civil actions against A person who kills or injures a dog belonging to Any person. The next section, Code, 19--20--13, as amended, deals with the liability of any owner or keeper of any dog who permits such dog to run at large and damages the property of another person while it is allowed to run at large. See Baer v. Tyler, 261 Mass. 138, 158 N.E. 536. The statute and decided cases in this state clearly classify dogs, if over six months of age, as property. Code, 19--20--1, as amended; State v. Voirs, 134 W.Va. 690, 61 S.E.2d 521; State v. Blake, 95 W.Va. 467, 121 S.E. 488.

The case of State v. Voirs, Supra, held that a dog of proper age, as required by statute, which was not assessed for taxation purposes was property and subject to larceny.

In order to recover damages for a dog the market value, pecuniary value or some special value must be proved and the general rule is that damages for sentimental value or mental suffering are not recoverable. 3 C.J.S. Animals § 234, page 1346; 1 A.L.R.3d, page 1000; Smith v. Palace Transp. Co., 253 N.Y.S. 87, 142 Misc. 93; Wilcox v. Butts Drug Stores, 38 N.M. 502, 35 P.2d 978.

In the case at bar there apparently was no attempt made by the parties to prove or to agree as to the value of the dog which was killed. The record contained no stipulation of facts signed by the parties and Rule 80(e) R.C.P. was not followed.

The judgment of the Circuit Court of Monongalia County is therefore reversed.

Reversed.

CALHOUN, J., dissents and reserves the right to file a dissenting opinion.

CALHOUN, Judge (dissenting):

Respectfully, I dissent. I would reverse the judgment of the Circuit Court of Monongalia County and remand the case to that court with directions to dismiss the case from the docket on the ground that, in the peculiar circumstances of this case, the plaintiff has no cause of action arising from the death of his dog. The alleged cause of action is necessarily predicated upon one or more statutes. In my opinion, no statute of this state creates a cause of action for recovery of damages based on the facts of this case. In these circumstances, I would not undertake, in this case, to define the proper measure of damages resulting to the plaintiff from the death of his dog.

'The status of the dog before the law is sui generis. Dogs are generally regarded as property, although the authorities differ as to whether or not they constitute property in the full and unqualified sense of the term.' 3 C.J.S. Animals § 3b, page 1086. 'In some respects, however, property in dogs is of an imperfect or qualified nature, and they may be subjected to peculiar and drastic police regulations by the state without depriving their owners of any constitutional right.' 4 Am.Jur.2d, Animals, Section 6, page 254.

Statutes of this state declare that dogs are property in a qualified sense only. Code, 1931, 19--20--1, as amended, declares that dogs are personal property subject to the qualification expressly stated in the statute as follows: 'Any dog above the age of six months shall be subject to taxation and Shall be and is hereby declared to be personal property within the meaning and construction of the laws of this State.' (Italics supplied.)

In State v. Arbogast, 133 W.Va. 672, 57 S.E.2d 715, it was held that, at common law, a dog could not be a subject of larceny and that this principle of law still applies in this state to dogs under the age of six months (formerly eight months) by reason of the statute quoted above. The Court's opinion in the instant case contains the following statement: 'The statute and decided cases in this state clearly classify dogs, if over six months of age, as property. Code, 19--20--1, as amended; State v. Voirs, 134 W.Va. 690, 61 S.E.2d 521; State v. Blake, 95 W.Va. 467, 121 S.E. 488.' It should be noted that both the Voirs case and the Blake case dealt with charges of larceny of dogs. The Court's opinion in this case does not refer to any prior decision of this Court involving a civil action to recover damages for injuries to or death of a dog caused either by a person or by another dog.

By Section 1 of Chapter 83, Acts of the Legislature, Regular Session, 1925, an owner of a dog above the age of eight months was 'permitted to place a value upon any dog owned by him and have such dog assessed as other personal property.' Section 2 of the same enactment provided for criminal penalties for injuring or killing any dog 'upon which taxes are paid, as herein provided.' The same section contained the following provision: 'And any person whose dog shall be killed wrongfully and unlawfully by any other person shall have a right of action against the person liable for the wrongful death of such dog, but in no such case can a recovery be had in excess of the assessed value of the dog. And in no case can a recovery be had if either the head or the property tax against such dog be delinquent at the time such dog may have been killed or injured.' Section 1 of Chapter 83, Acts of the Legislature, 1925, in which the language quoted above appears, subsequently was embodied in Code, 19--20--5, in substantially identical language.

When the Official Code of 1931 was adopted, there was included therein Article 20 of Chapter 19, which article dealt exclusively with the subject of 'Dogs.' By Chapter 69, Acts of the Legislature, Regular Session, 1951, Article 20 of Chapter 19 of the 1931 Official Code was repealed and reenacted in an amended form. Minor amendments of portions of...