Roos v. Loeser

KERRIGAN, J.

This is an action for damages alleged to have been sustained by plaintiff by reason of the killing of her dog, of the variety known as Pomeranian, by an Airedale belonging to the defendant. A jury trial was had, and judgment went for the plaintiff in the sum of five hundred dollars. Defendant made a motion for a new trial, which was denied, and he now appeals from the judgment.

The complaint alleges that on the sixteenth day of May, 1917, the plaintiff was the owner of a Pomeranian dog of the value of one thousand dollars; that the defendant was the owner of an Airedale, of vicious disposition and dangerous character, which on said date and for a long time prior thereto was evilly disposed toward other dogs and was accustomed to attack them without provocation, all of which matters were well known to the defendant; that nevertheless, the defendant carelessly and negligently permitted said Airedale to go upon the public streets of San Francisco unleashed and free from restraint, and that on the day mentioned, without provocation and while the plaintiff’s dog was proceeding peaceably along the public street, said Airedale attacked it from behind, the attack resulting in breaking the neck of the Pomeranian, from which its death immediately ensued.

From the evidence it appears that on said day the Pomeranian, attended by two maids, was pursuing the even tenor of its way upon the street, “tarrying” now and then and occupied with matters entirely his own, when the Airedale, an arrogant bully, domineering and dogmatic, being beyond

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the reach of the sound of his master’s voice and having evaded the vigilance of his keeper (for the maids and the man were vigilant), dashed upon the scene, and with destruction in his heart and mayhem in his teeth pounced upon the Pomeranian with the result already regretfully recorded; the plaintiff’s dog had had its day. It crossed to that shore from which none, not 'even a good dog, ever returns.

Leaving this painful subject and turning to the consider-' ations elaborately discussed in the briefs of able counsel, we remark that there was a time in the history of the law when, as is said in one of the early cases, “dog law” was as hard to define as “dog Latin.” As Blackstone puts it, dogs were the subject of property to a very limited and qualified degree; they had no intrinsic value, and were regarded as being kept only through the whim or caprice of their owner. They were not the subject of larceny. (2 Blackstone’s Commentaries, 393.) But that day has passed, and dogs now have a well-established status before the law. Considerable sums of money are invested in dogs, and they are the subject of extensive trade. Aside from their pecuniary value their worth is recognized by writers and jurists. Cuvier has asserted that the dog was perhaps necessary for the establishment of civil society, and that a little reflection will convince one that barbarous nations owe much of their subsequently acquired civilization to the dog. From the building of the pyramids to the present day, from the frozen poles to the torrid zone, wherever man has wandered there has been his dog. In the case of