Full Case Name:  Heiligmann v. Rose

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Country of Origin:  United States Court Name:  Supreme Court of Texas Primary Citation:  16 S.W. 931 (Tex.,1891) Date of Decision:  Tuesday, May 26, 1891 Judge Name:  FISHER, J. Jurisdiction Level:  Texas Alternate Citation:  81 Tex. 222, 16 S.W. 931 (1891) Judges:  FISHER J. Attorneys:  Oscar Bergstrom, J. M. Copeland

Appellees sued appellant for damages after he poisoned three of their dogs. The Court held that an owner has an action and remedy against a trespasser for damages resulting from injuries inflicted upon dogs because they are property. The Court elaborated on the true rule in determining the value of dogs, explaining that  It may be either a market value or some special or pecuniary value to the owner. The Court allowed actual damages.

This case originated in the justice court, and was tried on appeal in the district court of Bexar county at its February term, 1889, when judgment was rendered in appellees' favor against appellant for the sum of $75 and costs of suit. No written pleadings are in court, except a statement of appellees' demand, wherein they charge that appellant wickedly and maliciously poisoned five dogs, for which they ask a recovery of damages against appellant in the sum of $25 for each of said dogs as actual damages, and $75 exemplary damages. Appellant assigns as error the refusal of the court to instruct the jury upon his request: ‘You are further instructed that the claim of plaintiffs is based upon acts which, if true, would constitute, a criminal offense; and, before you can find for the plaintiffs, you must find from the evidence, beyond a reasonable doubt, that defendant poisoned the dogs sued for; and, if there is any reasonable hypothesis upon which this poisoning can be explained, except that the defendant did it or that *224 some other person than defendant might have poisoned them, then you will find for defendant.’ We know of no decision, and none is cited, that would justify the court in giving this charge. There is no force in the position that, because the facts of this case may involve a criminal act, there should be a greater or more certain degree of proof than is required in other civil actions. A party holding the affirmative of an issue is only required to adduce a preponderance of evidence such as will satisfy the minds of the jury of the truth of the facts in issue. As said by the court in the case of Sparks v. Dawson, 47 Tex. 145: ‘To require the facts to be established by evidence with that absolute certainty which fixes in the mind of the jury a conviction that excludes all reasonable doubts of their existence is a rule not applicable to this or any other civil case.’ The court did not err in refusing to give the charge.

The second assignment presented by appellant affirms that the court erred in the third subdivision of its charge, because the jury was authorized to find a verdict against defendant for exemplary damages, and suggests to them that the court believes the sum of $75 is a proper amount therefor. The charge complained of reads: ‘If you find from the evidence that defendant intentionally and willfully poisoned the dogs of plaintiffs as charged, or any one of said dogs, you will find a verdict in favor of the plaintiffs for the actual market value of the dog or dogs so poisoned, and you will, in addition, find a verdict for such exemplary damages as you may deem adequate, not exceeding seventy-five dollars. If, however, you find the charge of plaintiffs not proven, you will find for the defendant.’ In this connection, the court, at the request of appellant, gave the following in charge first: ‘In order for the plaintiffs to recover, you must find from the testimony that the defendant poisoned the dogs, and that they were the property of plaintiffs; that the dogs were of some pecuniary value,-either that they had some market value at which they would sell, or that the services or use of the dogs were of some pecuniary value. The simple opinion of a witness, not based upon any facts, as to market value or use of the dogs, is not sufficient.’ The court does not present the two elements of damages separately, but submits them in one general charge, and restricts the jury in their finding not exceeding a certain amount. In both particulars, our courts have repeatedly deprecated this practice; but, while this is true, the decisions uniformly hold, in the absence of a special charge correcting the error, that it alone is not sufficient cause for reversal. Newman v. Dodson, 61 Tex. 98; Brunswig v. White, 70 Tex. 512, 8 S. W. Rep. 85; Railroad Co. v. Lee, 71 Tex. 541, 9 S. W. Rep. 604; Brooke v. Clark, 57 Tex. 109; Belo v. Wren, 63 Tex. 727; Moehring v. Hall, 66 Tex. 241, 1 S. W. Rep. 258. If the verdict of the jury is for a less amount than they could properly find, under the evidence and pleadings, an instruction that informs *225 them that they cannot exceed a certain amount could result in no injury, and is harmless error. Railroad Co. v. Lee, 71 Tex. 541, 9 S. W. Rep. 604. The assignment is not well taken.

Appellant insists by his fourth assignment of error that the verdict of the jury is insufficient to support the judgment, because it does not specify whether they find actual or exemplary damages, or both, or how much of either. If the rule that the court is not required to submit the issues of actual and exemplary damages separately is correct, unless requested so to do, it would be inconsistent to require the jury to make separate findings **932 upon issues not submitted. This assignment is governed by the rule discussed under the one preceding.

The appellant's third assignment questions the sufficiency of the evidence to support the verdict of the jury, on the ground that the dogs poisoned were of no market or pecuniary value, or that their service or use was of value to the owners. Considering the evidence under this assignment, we find that appellees lost three valuable dogs by poison; such dogs at the time their property. The evidence that connects the appellant with the killing of the dogs is partially circumstantial, but we think sufficient to show his guilty agency, and that the trespass was intentional and malicious. The dogs were of fine breed, and well trained, and one of the Newfoundland dogs was trained to signal the arrival of any person at appellees', who could tell from his bark if the person was man, woman, or child. The dogs, so testifies appellee, are worth $25 each, and she would not take double that sum. Her husband paid $5 for one when young, and one was given in pay for professional services rendered by appellee; and she could have sold the dogs for $5 each, but would not take $50 each for them. Great pains were taken in raising them, and they were well trained. The authorities well settle that dogs are property, and that an owner has his action and remedy against a trespasser for the damages resulting from injuries inflicted upon them. Some authorites hold that dogs have no market value. This may be relatively true, but it is not a rule that will govern in all cases. It may be difficult, in the majority of cases, to ascertain the market value of a dog, but such a result may, in some cases, be accomplished. The special charge asked by appellant, and given by the court, substantially presents the true rule in determining the value of dogs. It may be either a market value, if the dog has any, or some special or pecuniary value to the owner, that may be ascertained by reference to the usefulness and services of the dog. Ramsey v. Hurley, 72 Tex. 200, 12 S. W. Rep. 56; Brunswig v. White, 70 Tex. 504, 8 S. W. Rep. 85; Uhlein v. Cromack, 109 Mass. 273; Brent v. Kimball, 60 Ill. 213; Perry v. Phipps, 10 Ired. 261; Parker v. Mise, 27 Ala. 483; Harrington v. Miles, 11 Kan. 483; Cantling v. Railroad, 54 Mo. 386; Spray v. Ammerman, 66 Ill. 313; Stickney v. Allen, 10 Gray, 355. The law recognizes a property in dogs, and for a trespass and infraction *226 of this right the law gives the owner his remedy. The wrong-doer cannot escape the consequences of his acts by saying, ‘You have suffered no damages,’ for the law implies that some damages result from every illegal trespass or invasion of another's rights. Parker v. Mise, 27 Ala. 483; Brent v. Kimball, 60 Ill. 213; Champion v. Vincent, 20 Tex. 816. There is no evidence in this case that the dogs had a market value, but the evidence is ample showing the usefulness and services of the dogs, and that they were of special value to the owner. If the jury from the evidence should be satisfied that the dogs were serviceable and useful to the owner, they could infer their value when the owner, by evidence, fixes some amount upon which they could form a basis. We cannot say that the verdict in this case is not based upon actual damages, and when the evidence, as it does in this case, justifies a verdict for either actual or exemplary damages, or both, we will not presume that the finding of the jury was based on grounds not proper. We find no error in the record, and report the case for affirmance.

Adopted by supreme court, May 26, 1891.


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