McCallister v. Sappingfield

Decision Date22 September 1914
Citation144 P. 432,72 Or. 422
PartiesMCCALLISTER v. SAPPINGFIELD.
CourtOregon 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.

McNARY J.

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?

"Q. I wish you would state whether or not the dog was trained as a stock dog on the ranch? A. Yes, sir; he was. Q. Tell the jury what you used him for. A. Well, I trained that dog from a puppy up to get my cattle for me of nights and mornings, round up the goats and bring them in; in fact, I used him every day. He was trained so all I had to say was to get the cows, and he would go out in a 30 or 40 acre field in the brush and timber, and he would bring them up just like you would go and get them yourself, and there was a creek--the Pudding river divides the land--and I lived on the east side. The cows and stock would cross the creek. There is a large pond there probably between 100 and 150 yards across. He would come from the barn with the cows, I knew they were not on that side of the creek. I could send him across the creek into a field there of 30 or 40 acres of timber, and he would go over there and bring the cows up, and bring them down and across the creek, and bring them up and save me possibly one or two hours' labor a day by bringing up my cattle, and I could send him after a band of goats, half a mile after goats, and he would round them up and bring them in, and the same with driving cattle and goats. He was one of the most useful dogs I ever owned. I have owned a good many dogs, and he would stand training. Other dogs I have had you couldn't train. I would buy a dozen different dogs and try to train them, but they would not develop anything good. This fellow was exceptionally bright, and would mind instantly, and was very useful. Q. Mr. McCallister, you stated that you had owned several dogs before? A. Yes, sir; we have had several dogs there on the place. Q. Are you familiar with the value of dogs? A. Well, I think I am, a good farm dog. Q. What would you consider the value of this dog? A. Well, gentlemen, the dog wasn't for sale. Q. What would you consider him reasonably worth? A. I think he was worth $500. I wouldn't have sold him for a cent less, because he was more useful to me than a span of horses was. When the dog was killed I was away in Eastern Oregon, down there possibly two or three months. I left my wife on the ranch alone, and she stayed there alone, and the dog stayed there with her. She wasn't afraid to stay because the dog was a protector to her, and at that time she had come to Eastern Oregon about three or four weeks, and left the dog with my father."

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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15 cases
  • Hofer v. Carson
    • United States
    • Oregon Supreme Court
    • January 10, 1922
    ... ... 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 ... ...
  • Justice v. Vercher, A169933
    • United States
    • Oregon Court of Appeals
    • August 31, 2022
    ...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......
  • Mosiman v. Vercher
    • United States
    • Oregon Court of Appeals
    • August 31, 2022
    ... ... 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 ... ...
  • Garcia v. Color Tile Distributing Co.
    • United States
    • New Mexico Supreme Court
    • November 22, 1965
    ...the owner. Rutherford v. James, supra; Wilcox v. Butt's Drug Stores, 1934, 38 N.M. 502, 35 P.2d 978, 94 A.L.R. 726; McCallister v. Sappingfield, 1914, 72 Or. 422, 144 P. 432. See also Duka v. Hotel Associates, Inc., 1962, 23 Conn.Sup. 500, 185 A.2d 86; annotation, 12 A.L.R.2d 899, Damages--......
  • Request a trial to view additional results

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