Louisville & Nashville Railroad v. Fitzpatrick

By the common law, ownership of a dog carried with it property rights to afford the owner a civil remedy for injuries to the animal but which was not a subject of larceny. — 4 Black. Com. 235. This court lias followed the common law doctrine entire as to actions for damages in Mise v. Parker, 27 Ala. 480 and White v. Brantley, 37 Ala. 430, and respecting larceny in Ware v. State, 48 Ala. 163 and Johnson v. State, 100 Ala. 32.

In other jurisdictions the civil remedy has been generally accorded, but to justify the proposition that a dog cannot be stolen has been difficult to an extent which has produced much conflict in decisions on that subject. See note to Hanby v. Sampson, 67 Am. St. Rep. 285, which collates and reviews authorities.

Still more difficulty is invited by the theory of ap-pellee’s demurrer and argument going upon the assumption that a dog though property when willfully injured has no such attribute as will merit the exercise of care to avoid his injury. That theory seems to be favored by the opinion in Jameson v. Southwestern, etc., R. Co., 75 Ga. 444, 58 Am. Rep. 476, but it was not necessary to the decision there made. In that opinion Wilson v. Wilmington, etc., R. Co., 10 Rich. (S. C.) 52, is cited as authority, but the latter decision, as is shown in Salley v. Manchester, etc., R. Co., 54 S. C. 481 (71 Am. St. Rep. 810), turned on the construction of a statute relating to the burden of proof on the question of negligence. In Salley’s case, swpra, the decision was on a demurrer to a complaint claiming damages for an alleged negligence of a railroad company in running over *325and killing a 'dog, and is, therefore, directly in point here. It upheld the cause of action as a conclusion resulting from what had been held on kindred questions in many adjudications referred to in the opinion. To the same effect are St. Louis, etc., R. Co. v. Hanks, 78 Texas, 301; Citizens' Rapid Transit Co. v. Dew, 100 Tenn. 317, 66 Am. St. Rep. 754; Jones v. Ill. Cent. R. Co., 75 Miss. 970.

We conclude that the complaint alleges actionable negligence and that there was no error in overruling the demurrer or in rendering judgment final under the conditional agreement of parties.

Affirmed.