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Judges and Judiciary
Jul. 19, 2002
Dogmatic, Deadly Airedale Loses in Court
Dicta Column - Court Jester - In Roos v. Loeser, 41 Cal.App. 782 (1919), Judge Frank H. Kerrigan found the following for the court, in pertinent part: 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 defendants. A jury trial was had, and judgment went for the plaintiff in the sum of five hundred dollars. He now appeals from the judgment.
Dicta Column
Court Jester
In Roos v. Loeser, 41 Cal.App. 782 (1919), Judge Frank H. Kerrigan found the following for the court, in pertinent part:
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 defendants. A jury trial was had, and judgment went for the plaintiff in the sum of five hundred dollars. He now appeals from the judgment.
The complaint alleges that on the 16th of May, 1917, the plaintiff was the owner of a Pomeranian dog of the value of $1,000; 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 its own, when the Airedale, an arrogant bully, domineering and dogmatic, being beyond the reach of the sound of his master's voice and having evaded the vigilance of his keeper, 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.
There was a time in 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 though the whim or caprice of their owner. They were not the subject of larceny. But that day has passed, and dogs now have a well-established status before the law. 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 civilizations to the dog. From the building of the pyramids to the present day, from the frozen poles to the torrid zone, where every man has wandered there has been his dog.
The Pomeranian was small, weighing about four and a half pounds, but history discloses that the small dog, perhaps oftener than his bigger brother, has rendered modest but heroic service and by his fidelity has influenced the course of history.
The owner of a dog is not liable for the injuries caused by it unless it is vicious and the owner has notice of this fact. ... But we think the evidence in this case shows, by inference at least, that while the defendant's dog was an estimable animal in many respects, he was, nevertheless prone to attack without provocation other dogs irrespective of size, and that such an assault upon a dog of the weight and physical characteristics of that owned by the plaintiff was likely to prove harmful, if not fatal, to the object of the attack. As to the defendant's prior knowledge of the vicious propensities of his Airedale, while the evidence may not clearly show that he was personally aware of them, it sufficiently demonstrates that his employee, in charge of him at the time of the attack, and whose custom it was to exercise it on the public streets, knew of its dangerous character, which knowledge the law charges to the employer.
It is urged by the appellant that the court erred in refusing to instruct the jury, as requested, that the plaintiff was guilty of contributory negligence arising from the fact that her dog was upon the public streets without being licensed - unlike the defendant's Airedale, whose master had ornamented his favorite with a tag entitling him to roam the city's streets secure from interference by the poundkeeper or his myrmidons. The appellant's contention in this respect would be well grounded if the plaintiff's omission to comply with the ordinance requiring dogs to be licensed had contributed to the incident resulting in the Pomeranian's untimely end. But for aught that appears the absence of a tag from the collar of plaintiff's dog was unnoticed by the Airedale, and was not the matter that aroused his ire or induced him to make the attack. His was the canine point of view and not of the license collector.
Judgment affirmed.
Court Jester
In Roos v. Loeser, 41 Cal.App. 782 (1919), Judge Frank H. Kerrigan found the following for the court, in pertinent part:
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 defendants. A jury trial was had, and judgment went for the plaintiff in the sum of five hundred dollars. He now appeals from the judgment.
The complaint alleges that on the 16th of May, 1917, the plaintiff was the owner of a Pomeranian dog of the value of $1,000; 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 its own, when the Airedale, an arrogant bully, domineering and dogmatic, being beyond the reach of the sound of his master's voice and having evaded the vigilance of his keeper, 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.
There was a time in 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 though the whim or caprice of their owner. They were not the subject of larceny. But that day has passed, and dogs now have a well-established status before the law. 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 civilizations to the dog. From the building of the pyramids to the present day, from the frozen poles to the torrid zone, where every man has wandered there has been his dog.
The Pomeranian was small, weighing about four and a half pounds, but history discloses that the small dog, perhaps oftener than his bigger brother, has rendered modest but heroic service and by his fidelity has influenced the course of history.
The owner of a dog is not liable for the injuries caused by it unless it is vicious and the owner has notice of this fact. ... But we think the evidence in this case shows, by inference at least, that while the defendant's dog was an estimable animal in many respects, he was, nevertheless prone to attack without provocation other dogs irrespective of size, and that such an assault upon a dog of the weight and physical characteristics of that owned by the plaintiff was likely to prove harmful, if not fatal, to the object of the attack. As to the defendant's prior knowledge of the vicious propensities of his Airedale, while the evidence may not clearly show that he was personally aware of them, it sufficiently demonstrates that his employee, in charge of him at the time of the attack, and whose custom it was to exercise it on the public streets, knew of its dangerous character, which knowledge the law charges to the employer.
It is urged by the appellant that the court erred in refusing to instruct the jury, as requested, that the plaintiff was guilty of contributory negligence arising from the fact that her dog was upon the public streets without being licensed - unlike the defendant's Airedale, whose master had ornamented his favorite with a tag entitling him to roam the city's streets secure from interference by the poundkeeper or his myrmidons. The appellant's contention in this respect would be well grounded if the plaintiff's omission to comply with the ordinance requiring dogs to be licensed had contributed to the incident resulting in the Pomeranian's untimely end. But for aught that appears the absence of a tag from the collar of plaintiff's dog was unnoticed by the Airedale, and was not the matter that aroused his ire or induced him to make the attack. His was the canine point of view and not of the license collector.
Judgment affirmed.
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