McCallister v. Sappingfield
Decision Date | 22 September 1914 |
Citation | 144 P. 432,72 Or. 422 |
Parties | MCCALLISTER v. SAPPINGFIELD. |
Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.
Action by M. D. McCallister against Henry Sappingfield. From a judgment for plaintiff, defendant appeals. Affirmed.
Grant Corby, of Salem, for appellant. Guy O. Smith, of Salem (Smith & Shields, of Salem, on the brief), for respondent.
As a solatium for the loss of a Scotch collie dog, plaintiff was awarded damages against defendant in the sum of $200. The complaint recites that in October, 1912 defendant without cause purposely shot and mortally wounded plaintiff's dog, which was of the reasonable value of $200. Following a general denial, defendant in his answer alleges as a separate defense that the animal was vicious and in the habit of attacking pedestrians and travelers along the public road; that on the day in question, while passing along the county thoroughfare on horseback, accompanied by a young dog, plaintiff's canine charged viciously upon defendant's horse and dog, and in order to repel the assault defendant fired at plaintiff's dog. This defense was denied by plaintiff.
But a single question is presented upon appeal, and that is: Did the circuit judge commit error when he admitted in evidence notwithstanding the objection of counsel for defendant, the following testimony given by plaintiff?
Testimony similar in nature and to which objection was made was given by William McCallister, father of the plaintiff. It is not necessary to repeat this testimony, as it must stand or fall according to the principle applied to the testimony of plaintiff.
The particular objection interposed to the testimony by the learned counsel is that it allowed plaintiff to prove the value of the doy by a recital of its "traits habits, and intelligence"; whereas plaintiff should have been confined to a proof of the market value of the animal. Counsel argues in his brief that the value "of an animal is the market value; what it would cost the plaintiff to go out in the market and secure another dog of the kind and quality of the one lost." Counsel finds his haven for this argument in section 5731, L. O. L., which says that "dogs are hereby declared to be personal property." This enactment is but a legislative declaration of the present-day common law, found in the decisions of most of the states of the Union. This modern conception of the dog as personal property, whether embodied in legislative enactments or judicial decisions, is the natural evolution of the status of the dog as known at common law which considered the animal to be property, yet of an inferior sort. Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175; Jemison v. Southwestern R. R., 75 Ga. 444, 58 Am. Rep. 476; State v. Topeka, 36 Kan. 76, 12 P. 310, 59 Am. Rep. 529; 1 R. C. L., 1113. However, the statement is occasionally found in the books that at common law a dog is not considered property by reason of the baseness of its nature, being kept merely to satisfy a human whim or pleasure. Citizens' Rapid Transit v. Dew, 100 Tenn. 317, 45 S.W. 790, 40 L. R. A. 518, 66 Am. St. Rep. 754. In Mullaly v. People, 86 N.Y. 365, the court said in substance, very enthusiastically, that when we call to mind the fact that a small spaniel saved the life of William of Orange, and thus...
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... ... L., ... declared a dog to be personal property, and in respect to ... this section, it was in effect held in McCallister v ... Sappingfield, 72 Or. 422, 425, 144 P. 432, 433, that the ... enactment of this section did not create a new right, but was ... ...
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Justice v. Vercher, A169933
...schemes, defendants are correct that Oregon law still considers animals to be property." (Footnote omitted.)); McCallister v. Sappingfield , 72 Or. 422, 425, 144 P. 432 (1914) (statute declaring dogs to be personal property is a "legislative declaration of the present-day common law" as "th......
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Mosiman v. Vercher
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