Scharfeld v. Richardson

• Decision Date: 23 November 1942
• Docket Number: No. 7890.,7890.
• Parties: SCHARFELD v. RICHARDSON.
• Court: U.S. Court of Appeals — District of Columbia Circuit

133 F.2d 340 (1942)

SCHARFELD v. RICHARDSON.

No. 7890.

United States Court of Appeals for the District of Columbia.

Decided November 23, 1942.

Mr. H. L. McCormick, of Washington, D. C., with whom Mr. Clair L. Stout, of Washington, D. C., was on the brief, for appellant.

Mr. Walter M. Bastian, of Washington, D. C., for appellee.

Before STEPHENS, VINSON, and RUTLEDGE, Associate Justices.

VINSON, Associate Justice.

A jury in the Municipal Court, after finding appellant's dog, "Popo", to have been the perpetrator of a fatal assault upon "Little Bits", the pet Pomeranian owned by Mrs. Emily W. Erck, and that the appellant had been apprised of Popo's malevolent propensities, returned a verdict for propensities, returned a verdict for Mrs. Erck in the sum of $200.00. Since the judgment Mrs. Erck has died, and there has been substituted in her place as appellee William E. Richardson, executor and trustee of her estate. Appellant contends that appellee is not entitled to recover for the loss of Little Bits, relying upon the admitted fact that Little Bits, at the time of its death, was not wearing and never had been provided with a tax tag as prescribed by Title 20, Sections 915 et seq., of the District of Columbia Code (1929).¹

The statute, enacted in 1878, provides for the levy of an annual tax upon "all dogs owned or kept in the District of Columbia";² the issuance by the collector of a "tax tag" upon the payment thereof;³ the impoundment and disposal of all dogs found running at large without the tax tag;⁴ the civil liability of the owner of a "recorded" dog for any damage done by the same;⁵ the adornment of all dogs with a certain collar containing the said tag and prescribing penalties for the failure thereof;⁶ and certain penalties for the removal or molestation of these collars or tax tags.⁷ In addition, Section 918 declares:

"Any dog wearing the tax tag * * * shall be permitted to run at large within the District of Columbia, and any dog wearing the tax tag * * * shall be regarded as personal property in all the courts of said District, and any person injuring or destroying the same shall be liable to a civil action for damages * * *."

It is an established principle of the common law that a dog is personal property and that its owner may recover for a willful or negligent injury thereto,⁸ and it has been deemed immaterial whether the injured dog had been licensed or taxed as prescribed by law.⁹ It is in the discretion of the legislature, however, to delimit these property rights in a dog,¹⁰ and appellant asks us to consider that Section 918 effects a deprivation of these rights to the extent that Little Bits cannot be regarded as personal property, and that no action can be predicated upon its destruction. Appellant contends that Congress in declaring that all dogs wearing the tax tag shall be regarded as personal property and that any person injuring the same shall be liable in a civil action for damages, by necessary implication, has changed the common law rule to the extent that any dog not wearing the tax tag is not personal property and that anyone injuring the same is not liable in damages.

The suggested construction would change the common law rule. No explicit provision for such a change is contained in the Act. The courts have consistently held legislation derogative of the common law accountable to an exactness of expression, and have not allowed the effects of such legislation to be extended beyond the necessary and unavoidable meaning of its terms. The presumption runs against such innovation. This is merely a familiar principle of statutory construction. We are mindful, however, of the caution with which this principle is applied whenever there is a suggestion that an adherence to the letter of the statute would defy an obvious legislative purpose or "lessen the scope plainly intended to be given to the measure."¹¹ Not only must we weigh the force and finality of the words employed in Section 918, but its effect should not be judicially determined apart from its context. It should be considered in association with other related declarations in the Act with a view to the legislative aims and purposes therein and the legislative history of the general subject matter. Guided by these directives, we find the Act to contain several positive indications inconsistent with appellant's construction.

In 1887, this court, in Murphy v. Preston,¹² construed Section 919. This Section reads:

"Any person owning any dog so recorded in the collector's office shall be liable in a civil action for any damage done by said dog to the full amount of the injury inflicted."

The plaintiff, there, argued that the Section dispensed with the common law requirement of scienter to establish the liability of an owner for the damage done by his dog. The court acknowledged that a strict interpretation of that Section supported the plaintiff's contention; but ruled that the common law necessity of proving scienter had not been modified, holding the provisions of the statute to be in derogation of the common law and thus subject to a strict construction.

After a "careful examination and comparison" of the previously existing regulations concerning dogs, this court stated it was satisfied that Congress had not designed the Act of 1878 to introduce any new principles of law:

"* * * the act announces no new principle of law on the subject. The provision that dogs shall be considered, in such wise, personal property, that the owner may have an action against those injuring them, had already been recognized as the law by our courts. Meig's Case, 1 MacArthur, 53 8 D.C. 53, 29 Am.Rep. 578. Hence, section 4 of the act § 918 which declares that a person injuring or destroying a dog wearing a tag shall be liable in a civil action for damages to the owner of the animal, is only declaratory of the existing law, and must be construed according to common law principles.

"* * * So, the provision in section 5 § 919, that the owner should be liable in damages for injuries caused by his dog, was already well recognized as the law. * * *"¹³ Italics supplied.

When a statute, such as this, is of some sixty years' vintage, a contemporaneous construction and analysis of this sort is of particular persuasiveness on the question of legislative intent. It may be considered that Congress attached implied approbation to this construction when, in 1902, it made an addition to Section 918,¹⁴ and left that Section unaffected in all material respects.¹⁵ On the basis of the observations in the Murphy case, therefore, as well as the treatment of analogous statutes in other jurisdictions, we believe that the above admonition apropos of interpretative liberality in deference to obvious legislative intent does not pertain to the present legislation, and that the general rule of strict construction prevails.

It is an established rule of the common law that an owner may be liable in a civil action for the damage caused by his dog. Section 919 imposes this liability upon the owner of the "recorded" dog. Consistency would compel the appellant to argue that Congress, in declaring therein that the owner of a recorded dog should be liable in a civil action for damages caused by the same, by necessary implication, has changed the common law rule to the extent that any owner of a dog not recorded should not be so liable. The parallel of this reasoning with the reasoning advanced in support of the appellant's contention in respect of Section 918 is perfect. A comparison of these two sections is, therefore, especially indicative of the conclusion that appellant's contention cannot stand. These two sections are consecutive parts of the same Act, passed on the same day, worded with similar references to preceding sections, possessed of parallel phraseology, and obviously intended (as is the whole of the Act) to be read together. The similar structure and terminology must be given the same effect in the one as in the other. If this court should follow appellant's contention as to Section 918, it would experience difficulty in attaching a different interpretation to Section 919, should the occasion arise. The discriminatory effects implicit in the latter instance need no extended delineation. If the roles of the principals in this tragedy had been reversed, with Little Bits the villain and Popo the victim, the appellant might very well have considered that the appellee had not exempted himself from civil liability by failing to provide Little Bits with a tax tag.

In addition, there are other evidences in the Act that make it plain that an unlicensed dog was not intended to lose its status as personal property. Section 917 provides that when an unlicensed dog is impounded, it may be redeemed by "the owners thereof" upon the payment of two dollars. While this two dollars is the monetary equivalent of the tax levy, the provision does not, in terms, or by any manner of implication, make the forfeiture thereof the payment of the tax, but rather a penalty and the price of redemption (the pound-master not being entitled to instant reseizure as the dog would no longer be at large). More important, however, the use of the word "owners" and the provided power of redemption are too opposed to the concept of a complete absence of property rights to give the statute the force that appellant contends. The etymological association and the legal interdependence of the words "owners" and "property" make the conclusion inescapable that all property rights in an untagged dog were not intended to be and were not removed.

If the other construction be adopted, appellee has urged that foreign dogs, temporarily in the District, being necessarily without a license, would be subject to abuse and their owners entitled to no redress in our courts. Appellee does not go far enough, for under the appropriate conflicts rule, there being no tort where the injury occurred, the aggrieved...