Julie L. Rabideau, Plaintiff-Appellant-Petitioner, v. City of Racine, Defendant-Respondent.

No. 99-3263

SUPREME COURT OF WISCONSIN

2001 WI 57; 243 Wis. 2d 486; 627 N.W.2d 795; 2001 Wisc. LEXIS 396

February 28, 2001, Submitted on Briefs
June 12, 2001, Opinion Filed

PRIOR HISTORY: REVIEW OF A DECISION OF THE COURT OF APPEALS. Reported at: 238 Wis. 2d 96, 617 N.W.2d 678 (Ct. App. 2000-Unpublished). COURT: Circuit. COUNTY: Racine. JUDGE: Allan B. Torhorst.

DISPOSITION: Affirmed in part, reversed in part and remanded.

COUNSEL: For the plaintiff-appellant-petitioner there were briefs by Alan D. Eisenberg and Law Offices of Alan D. Eisenberg, Milwaukee, and oral argument by Alan D. Eisenberg.

For the defendant-respondent there was a brief and oral argument by W. Scott Lewis, assistant city attorney.

JUDGES: WILLIAM A. BABLITCH, J. SHIRLEY S. ABRAHAMSON, C.J., concurs (opinion filed).

OPINIONBY: WILLIAM A. BABLITCH

OPINION: [***797] [**491]

[*P1] WILLIAM A. BABLITCH, J. Dakota was shot by a City of Racine police officer. He subsequently died from the injury. Dakota lived with Julie Rabideau (Rabideau), who witnessed the events leading to his death. Rabideau subsequently filed a claim for damages against the City of Racine (the City). Racine County Circuit Court Judge Allan B. Torhorst granted summary judgment to the City, and the court of appeals affirmed. n1

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n1 Rabideau v. City of Racine, 2000 WI App 161, 238 Wis. 2d 96, 617 N.W.2d 678, unpublished slip op. (Wis. Ct. App. 2000), was decided by one judge pursuant to Wis. Stat. § 752.31(2)(a)(1997-98).

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[*P2] The primary question presented in this case is whether Rabideau is entitled to [***798] damages for emotional distress. Although the question of whether or not a bystander may recover damages after witnessing an accident is a legal question that this court has previously addressed, this particular case is distinguishable from others: Dakota was a dog, a companion to Rabideau.

[*P3] At the outset, we note that we are uncomfortable with the law’s cold characterization of a dog, such as Dakota, as mere “property.” n2 Labeling a dog “property” fails to describe the value human beings place upon the companionship that they enjoy with a dog. A companion dog is not a fungible item, equivalent to other items of personal property. n3 A companion dog is [**492] not a living room sofa or dining room furniture. This term inadequately and inaccurately describes the relationship between a human and a dog.

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n2 See Campbell v. Animal Quarantine Station, 63 Haw. 557, 632 P.2d 1066, 1071 n.5 (Haw. 1981) (“The law clearly views a dog as personal property. Thiele v. City and County of Denver, 135 Colo. 442, 312 P.2d 786 (1957); Smith v. Costello, 77 Idaho 205, 290 P.2d 742 (1955)”).

n3 This argument concerning the distinction between companion animals and goods owned primarily for their economic value is set forth fully in Steven M. Wise, Recovery of Common Law Damages for Emotional Distress, Loss of Society, and Loss of Companionship for the Wrongful Death of a Companion Animal, 4 Animal L. 33, 69-70 (1998).

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[*P4] The association of dog and human is longstanding. Dogs have been a part of human domestic life since 6,300 B.C. Debra Squires-Lee, In Defense of Floyd: Appropriately Valuing Companion Animals in Tort, 70 N.Y.U. L. Rev. 1059, 1064 (1995). Archaeologists have uncovered a 12,000-year-old burial site in which a human being and a dog lay buried together. “The arm of the person was arranged on the dog’s shoulder, as if to emphasize the bonds that existed between these two individuals during life.” Id. (internal quotation marks and footnote omitted). Dogs are so much a part of the human experience that we need not cite to authority when we note that dogs work in law enforcement, assist the blind and disabled, perform traditional jobs such as herding animals and providing security, and, of course, dogs continue to provide humans with devoted friendship.

[*P5] Nevertheless, the law categorizes the dog as personal property despite the long relationship between dogs and humans. To the extent this opinion uses the term “property” in describing how humans value the dog they live with, it is done only as a means of applying established legal doctrine to the facts of this case.

[*P6] Two theories are proffered by Rabideau as grounds for the recovery of emotional damages: negligent infliction of emotional distress and intentional infliction of emotional distress. As to the first, as a predicate matter to bringing a claim for damages based [**493] upon the tort of negligent infliction of emotional distress the plaintiff must be related to the victim as spouse, parent-child, grandparent-grandchild, or sibling. n4 Because the relationship between Rabideau and Dakota did not fall within one of these categories, we find that she cannot maintain a claim on this basis.

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n4 Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 657, 517 N.W.2d 432 (1994).

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[*P7] We further conclude that Rabideau cannot maintain a claim for recovery for the emotional distress caused by negligent damage to her property. Our decision is based upon well-established public policy criteria. n5 We are particularly concerned that were such a claim to go forward, the law would proceed upon a course that had [***799] no just stopping point. Humans have an enormous capacity to form bonds with dogs, cats, birds and an infinite number of other beings that are non-human. Were we to recognize a claim for damages for the negligent loss of a dog, we can find little basis for rationally distinguishing other categories of animal companion.

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n5 Kleinke v. Farmers Coop. Supply & Shipping, 202 Wis. 2d 138, 144-45, 549 N.W.2d 714 (1996).

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[*P8] Rabideau’s second theory is based upon intentional infliction of emotional distress. We concur with the court of appeals that Rabideau’s complaint cannot survive summary judgment when examined within the framework of set forth in Alsteen v. Gehl, 21 Wis. 2d 349, 359, 124 N.W.2d 312 (1963).

[*P9] In addition to these claims we address three additional issues. First, we conclude that Rabideau’s complaint, liberally read, encompasses a claim for damages for property loss.

[*P10] Second, we find that genuine issues of material fact exist as to whether Officer Thomas Jacobi [**494] was entitled as a matter of law to shoot and kill Dakota. See Wis. Stat. § 174.01 (1997-98). n6 Accordingly, we reverse the circuit court’s grant of summary judgment on the basis of § 174.01.

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n6 All references to the Wisconsin Statutes are to the 1997-98 version unless noted otherwise.

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[*P11] Third, we reverse the determination by the circuit court that this complaint was frivolous. We conclude that Rabideau’s complaint for damages for the intentional infliction of emotional distress was one that could properly be brought, although the elements for that claim were not satisfied so as to survive a motion for summary judgment. As to Rabideau’s claim for damages based upon the negligent infliction of emotional distress, her brief to the court of appeals and this court set forth a good faith argument for an extension of the law. Under these circumstances a finding of frivolousness was erroneous.

Standard of Review

[*P12] In this case we are reviewing the circuit court’s grant of summary judgment to the City. n7 This presents a question of law that we review de novo. Strasser v. Transtech Mobile Fleet Serv., 2000 WI 87, P28, 236 Wis. 2d 435, 613 N.W.2d 142. Pursuant to Wis. Stat. § 802.08(2), summary judgment shall be granted if there is no genuine issue as to any material [**495] fact and the moving party is entitled to judgment as a matter of law. “In analyzing whether there are genuine issues of material fact, we draw all reasonable inferences in favor of the nonmoving party.” Strasser, 2000 WI 87 at P32.

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n7 The City filed a motion to dismiss for failure to state a claim upon which relief could be granted. We agree with the court of appeals that because the circuit court considered matters outside the pleadings, the case should be treated as a review of a grant of summary judgment pursuant to Wis. Stat. § 802.06(3) Rabideau, No. 99-3263, unpublished slip op. at 3 (Wis. Ct. App. June 7, 2000).

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Analysis

[*P13] We begin our analysis by briefly reviewing the facts. Rabideau and Officer Jacobi were neighbors. On March 31, 1999, Officer Jacobi had just returned home. Across the street, Rabideau was returning home as well. Dakota jumped out of Rabideau’s truck. He crossed the street to the Jacobi house where Jed, the Jacobi’s Chesapeake Bay retriever, was in the yard.

[*P14] There is significant disagreement between the parties concerning what subsequently occurred. The City argued that Dakota came onto the Jacobi property and attacked Jed. Officer Jacobi, it is contended, shouted at Dakota to no effect. The [***800] City argues that Officer Jacobi, fearing for the safety of Jed, and for the safety of his wife and child who were nearby, fired a number of shots with his service revolver. Dakota moved toward the street and turned his head and was snarling. Officer Jacobi, believing the dog was about to charge, fired a third time and struck Dakota.

[*P15] On the other hand, Rabideau contends that Dakota was sniffing Jed, not biting or acting aggressively. She asserts that she called Dakota and was crossing the street to retrieve him when shots rang out.

[*P16] Although both parties agree that three shots were fired, Rabideau maintains that Dakota was stepping off the curb toward her when he was hit by Officer Jacobi’s second shot. Rabideau asserts that while Dakota was struggling to crawl away, Officer Jacobi fired again and missed.

[**496] [*P17] Two days after the shooting occurred, Rabideau was informed that Dakota died. Upon hearing this news, she collapsed and was given medical treatment.

[*P18] Rabideau filed a complaint in small claims court, which stated: “City of Racine Police Officer Thomas Jacobi shot and killed my dog, Dakota, and caused me to collapse and require medical attention.”

I

[*P19] The circuit court and the court of appeals both determined that Rabideau’s complaint set forth a claim for emotional distress. The circuit court addressed this complaint as one asserting a claim of negligent infliction of emotional distress. The court of appeals addressed both negligent infliction of emotional distress and intentional infliction of emotional distress. In this review, we will address both claims.

A

[*P20] Rabideau argues that the tort of negligent infliction of emotional distress to a bystander should encompass the facts of this case. Our tort law recognizes a claim for damages where a bystander suffers great emotional distress after witnessing an accident or its gruesome aftermath involving death or serious injury to a close relative. See Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994). The elements of the claim are: “‘(1) that the defendant’s conduct [in the underlying accident] fell below the applicable standard of care, (2) that the plaintiff suffered an injury [severe emotional distress], and (3) that the defendant’s conduct was a cause-in-fact of the plaintiff’s injury.’” Wis JI–Civil 1510 Comment (quoting [**497] Bowen, 183 Wis. 2d at 632.) Rabideau’s complaint sets forth these elements.

[*P21] Nevertheless, even if a plaintiff sets forth the elements of a negligence claim, a court may determine that liability is precluded by public policy considerations. Gritzner v. Michael R., 2000 WI 68, P26, 235 Wis. 2d 781, 611 N.W.2d 906. Before a court makes such a determination, it is typically the better practice to submit the case to the jury. Id. If, however, the facts of the case are not complex and the attendant public policy issues are presented in full, then this court may determine before trial if liability is precluded by public policy. Id. Accordingly, we turn next to a consideration of the public policy concerns presented by this issue.

[*P22] The Bowen analysis noted that two concerns have historically shaped the development of the tort of negligent infliction of emotional distress. These concerns are (1) establishing that the claim is genuine, and (2) ensuring that allowing recovery will not place an unfair burden on the [***801] tortfeasor. Bowen, 183 Wis. 2d at 655.

[*P23] Where, as in the present case, the issue presented is negligent infliction of emotional distress on a bystander, Bowen identified three public policy factors to be applied in an effort to establish that the claim is genuine, the tortfeasor is not unfairly burdened, and that other attendant public policy considerations are not contravened. Id. at 655-58. First, the victim must have been killed or suffered a serious injury. Second, the plaintiff and victim must be related as spouses, parent-child, grandparent-grandchild or siblings. Third, “the plaintiff must have [**498] observed an extraordinary event, namely the incident and injury or the scene soon after the incident with the injured victim at the scene.” Id. at 633.

[*P24] We need not address each of these factors because it is plain that the victim in this case is not related to Rabideau as a spouse, parent, child, sibling, grandparent or grandchild. Accordingly, she cannot maintain a claim for negligent infliction of emotional distress.

[*P25] Rabideau urges that we extend this category to include companion animals. In her words, “anyone who has owned and loved a pet would agree that in terms of emotional trauma, watching the death of a pet is akin to losing a close relative.” Further, she contends that we need not engage in an analysis of whether companion animals are “family,” but should instead examine the rationale supporting the limitation to certain family members. Rabideau argues that the limitation of claims to family members is a means of assuring foreseeability as well as a reasonable limitation of the liability of a negligent tortfeasor. According to Rabideau, the bond between companion animals and humans is one that is sufficiently substantial to ensure that these concerns are met.

[*P26] We agree, as we must, that humans form important emotional connections that fall outside the class of spouse, parent, child, grandparent, grandchild or sibling. We recognized this in Bowen, n8 and repeat here, that emotional distress may arise as a result of witnessing the death or injury of a victim who falls outside the categories established in tort law. However, the relationships between a victim and a spouse, parent, child, grandparent, grandchild or sibling are [**499] deeply embedded in the organization of our law and society. The emotional loss experienced by a bystander who witnessed the negligent death or injury of one of these categories of individuals is more readily addressed because it is less likely to be fraudulent and is a loss that can be fairly charged to the tortfeasor. The emotional harm occurring from witnessing the death or injury of an individual who falls into one of these relationships is serious, compelling, and warrants special recognition. Id. at 657.

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n8 Bowen, 183 Wis. 2d at 657.

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[*P27] We concluded in Bowen that for the present time these tort claims would be limited; we reach the same conclusion in this case. We note that this rule of nonrecovery applies with equal force to a plaintiff who witnesses as a bystander the negligent injury of a best friend who is human as it does to a plaintiff whose best friend is a dog.

[*P28] Had Rabideau been a bystander to the negligent killing of her best human friend, our negligence analysis would be complete. However, as we have previously noted the law categorizes dogs as property. We turn, therefore, to consider whether Rabideau can maintain a [***802] claim for negligent infliction of emotional distress arising from property loss.

[*P29] In Kleinke v. Farmers Cooperative Supply & Shipping, 202 Wis. 2d 138, 145, 549 N.W.2d 714 (1996), we concluded that under Wisconsin’s formulation of tort law, “it is unlikely that a plaintiff could ever recover for the emotional distress caused by negligent damage to his or her property.” This conclusion was founded upon public policy. n9

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n9 At least one other court has adopted a different approach. Hawaii permits recovery for mental distress occurring as a result of the negligent destruction of property. Campbell, 632 P.2d at 1071 (citing Rodrigues v. State, 472 P.2d 509 (Haw. 1970)). Based upon this principle of Hawaiian tort law, in Campbell the Hawaii Supreme Court allowed recovery for serious mental distress resulting when the plaintiffs’ dog died of heat prostration after being loaded into an unventillated van on a hot afternoon, and the van was exposed directly to the sun.

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[*P30] The public policy analysis in Kleinke drew upon the reasoning of Bowen. In Bowen this court listed six public policy factors addressed by courts when considering the authenticity and fairness of an emotional distress claim. These various public policy considerations set forth in Bowen, and cited in Kleinke, are:

(1) Whether the injury is too remote from the negligence; (2) whether the injury is wholly out of proportion to the culpability of the negligent tortfeasor; (3) whether in retrospect it appears too extraordinary that the negligence should have brought about the harm; (4) whether allowance of recovery would place an unreasonable burden on the negligent tortfeasor; (5) whether allowance of recovery would be too likely to open the way to fraudulent claims; or (6) whether allowance of recovery would enter a field that has no sensible or just stopping point.

Kleinke, 202 Wis. 2d at 144-45 (quoting Bowen, 183 Wis. 2d at 655).

[*P31] In this case we need only examine one of the Bowen – Kleinke factors to conclude that there is no basis for recovery here. This factor concerns whether allowance of recovery would enter a field that has no sensible or just stopping point. Rabideau suggests that limiting liability to the human companion of a companion animal who is killed may satisfy this concern. We [**501] find this proposed resolution unsatisfactory. First, it is difficult to define with precision the limit of the class of individuals who fit into the human companion category. Is the particular human companion every family member? the owner of record or primary caretaker? a roommate? Second, it would be difficult to cogently identify the class of companion animals because the human capacity to form an emotional bond extends to an enormous array of living creatures. Our vast ability to form these bonds adds to the richness of life. However, in this case the public policy concerns relating to identifying genuine claims of emotional distress, as well as charging tortfeasors with financial burdens that are fair, compel the conclusion that the definition suggested by Rabideau will not definitively meet public policy concerns.

[*P32] Based upon all the above, we conclude that Rabideau cannot maintain a claim for the emotional distress caused by negligent damage to her property.

B

[*P33] Next, we consider Rabideau’s claim of intentional infliction of emotional distress. Four elements must be established for a plaintiff to maintain such a claim. A plaintiff must demonstrate [***803] (1) that the defendant’s conduct was intentioned to cause emotional distress; (2) that the defendant’s conduct was extreme and outrageous; (3) that the defendant’s conduct was a cause-in-fact of the plaintiff’s emotional distress; and (4) that the plaintiff suffered an extreme disabling emotional response to the defendant’s conduct. Alsteen, 21 Wis. 2d at 359-60; Wis JI–Civil 2725. We agree with the court of appeals’ conclusion that summary judgment is warranted here.

[**502] [*P34] The first Alsteen element requires the plaintiff to demonstrate that the defendant acted with the intent to cause emotional harm. “One who by extreme and outrageous conduct intentionally causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from it.” Id. at 358 (emphasis omitted). In this case, there is no material issue of fact in the record that suggests that Officer Jacobi acted for the purpose of causing Rabideau emotional harm.

[*P35] Rabideau argues that she need only show that Officer Jacobi acted intentionally when he shot Dakota. She contends that by shooting Dakota while she was present, Officer Jacobi would have known that his act would cause her severe emotional distress. Rabideau argues that such knowledge is tantamount to intentionally causing severe emotional distress because “a person is presumed to intend ‘the natural and probable consequences of his acts voluntarily and knowingly performed.’” Haessly v. Germantown Mut. Ins. Co., 213 Wis. 2d 108, 118, 569 N.W.2d 804 (Ct. App. 1997) (quoting State v. Gould, 56 Wis. 2d 808, 814, 202 N.W.2d 903 (1973)).

[*P36] The presumption cited by Rabideau from Haessley is generally applied in criminal cases. See Hawpetoss v. State, 52 Wis. 2d 71, 80, 187 N.W.2d 823 (1971). Rabideau’s application in this case of the general rule that an accused is presumed to intend the natural and probable consequences of his act obfuscates what is required by the first element of this cause of action. The plaintiff must establish that the purpose of the conduct was to cause emotional distress. There is no question that Officer Jacobi intended to fire his weapon at Dakota. However, there is no evidence to [**503] indicate he did so to cause emotional distress to Rabideau. Certainly that was a by-product, but that is insufficient standing alone. This is a limitation upon the cause of action for the intentional infliction of emotional distress. Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 694-95, 271 N.W.2d 368 (1978). There must be something more than a showing that the defendant intentionally engaged in the conduct that gave rise to emotional distress in the plaintiff; the plaintiff must show that the conduct was engaged in for the purpose of causing emotional distress. While intent may be evidenced by inferences from words, conduct or the circumstances in which events occurred, in the present case there is no asserted fact as to this element. Accordingly, we are not persuaded by Rabideau’s argument, and we affirm the court of appeals’ grant of summary judgment.

II

[*P37] Although we affirm the court of appeals’ decision as to Rabideau’s claims for damages based upon emotional distress, we hold that the court erred in its conclusion that Rabideau’s claim did not seek damages for lost property. A claim for damages for property loss as the result of Officer Jacobi’s action is the most conventional claim Rabideau could have brought, and is without doubt the most widely recognized claim that arises when an animal is killed. See 1 Dan B. Dobbs, [***804] Law of Remedies § 5.15(3), at 898 (2d ed. 1993); Robin Cheryl Miller, Annotation, Damages for Killing or Injuring Dog, 61 A.L.R.5th 635 (1998). We therefore hold that Rabideau’s complaint, liberally construed, also encompassed a demand for damages for property loss. We decline to further address the proper means to [**504] measure this property loss or whether other elements, such as veterinary expenses incurred in treating a companion animal’s injuries, may be recovered. These issues were not thoroughly briefed by both parties. See State v. Bodoh, 226 Wis. 2d 718, 737, 595 N.W.2d 330 (1999) (issues not raised or considered in the trial court will not be considered for the first time on appeal unless the new issue is a question of law that the parties have thoroughly briefed, and there are no disputed issues of fact regarding the new issue).

III

[*P38] The next issue we consider concerns the circuit court’s grant of summary judgment on the basis of Wis. Stat. § 174.01. As an affirmative defense, the City asserted that Officer Jacobi was privileged to shoot and kill Dakota pursuant to this statute. Section 174.01 provides as follows:

(1) Killing a dog. (a) Except as provided in par. (b), a person may intentionally kill a dog only if a person is threatened with serious bodily harm by the dog and:

1. Other restraining actions were tried and failed; or

2. Immediate action is necessary.

(b) A person may intentionally kill a dog if a domestic animal that is owned or in the custody of the person is threatened with serious bodily harm by the dog and the dog is on property owned or controlled by the person and:

1. Other restraining actions were tried and failed; or

[**505] 2. Immediate action is necessary.

(2) Inapplicable to officers, veterinarians and persons killing their own dog. This section does not apply to an officer acting in the lawful performance of his or her duties under s. 29.931 (2)(b), 95.21, 174.02(3) or 174.046(9), or to a veterinarian killing a dog in a proper and humane manner or to a person killing his or her own dog in a proper and humane manner.

(3) Liability and penalties. A person who violates this section:

(a) Is liable to the owner of the dog for double damages resulting from the killing;

(b) Is subject to the penalties provided under s. 174.15; and

(c) May be subject to prosecution, depending on the circumstances of the case, under s. 951.02.

[*P39] The court of appeals concluded that the circuit court improperly applied summary judgment procedures when determining whether Officer Jacobi was privileged to shoot Dakota under Wis. Stat. § 174.01. However, the court of appeals further determined that the issue was moot because it determined that even if Officer Jacobi’s actions were not privileged, Rabideau could not recover damages pursuant to her complaint. Rabideau, No. 99-3263, unpublished slip op. at 9-10 (Wis. Ct. App. June 7, 2000).

[*P40] Based upon our examination of the record we agree that summary judgment on this issue was improper because material facts pertaining to the statute are in dispute. For example, although the City asserts that Dakota and Jed were fighting, Rabideau contends that they were not in a fight. Rabideau asserts that Dakota was not threatening Officer [**506] Jacobi, his wife or his child. The City disagrees. Rabideau [***805] claims Dakota was on the curb; the City contends the dogs were in Officer Jacobi’s yard.

[*P41] We also note that the exemption for police officers provided in Wis. Stat. § 174.01(2) requires that the officer is acting pursuant to one of a variety of statutes. However, the record does not establish that Officer Jacobi was acting under any of the enumerated statutory provisions.

[*P42] We disagree with the court of appeals’ conclusion that the granting of summary judgment on the basis of this statute was moot. Wisconsin Stat. § 174.01(3) provides that an individual who intentionally kills a dog in violation of the statute is liable to the owner for double damages. Therefore, because material facts are in dispute, the circuit court’s order of summary judgment pursuant to § 174.01(1) is reversed.

IV

[*P43] Finally, Rabideau asserts that the circuit court erred by finding her claim frivolous and awarding attorney fees and costs to the City of Racine. We agree.

[*P44] The circuit court made a finding of frivolousness grounded upon Wis. Stat. § 814.025(3)(b) n10 The circuit court noted that in this case two identical small claims complaints were filed. One complaint was signed by Julie Rabideau and date stamped July 28, 1999, at 3:30 p.m. A second complaint was signed by her attorney and date stamped July 28, 1999, at 3:33 p.m. The circuit court held that the attorneys for Rabideau [**507] were to be responsible for all costs and fees incurred by the City. Under § 814.025(3)(b), costs for frivolous claims may be awarded upon a finding that the party or attorney “knew, or should have known” that the claim was “without any reasonable basis in law or equity.”

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n10 The circuit court based its finding of frivolousness solely upon Wis. Stat. § 814.025. We need not address the City’s contention that standards utilized for finding frivolousness under Wis. Stat. § 802.05 apply to § 814.025.

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[*P45] Courts tread carefully when considering a claim of frivolous action, for the “ingenuity, foresightedness and competency of the bar must be encouraged and not stifled.” Radlein v. Industrial Fire & Cas. Ins. Co., 117 Wis. 2d 605, 613, 345 N.W.2d 874 (1984). The statute reflects this policy by requiring the court to consider whether the party or attorney knew the action was without any reasonable basis in law, and could not be supported by a good faith argument for an extension, modification or reversal of existing law. n11 As to this second step, the circuit court is to consider each of the alternative possibilities of a good faith argument, that is, was the existing law ready for an extension, modification or reversal. If the law is not ready for an extension, modification or reversal, the court is to [***806] consider [**508] whether the argument for the change was made in good faith. Id. at 612.

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n11 Wisconsin Stat. § 814.025 provides in relevant part:

(1) If an action . . . is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party costs determined under s. 814.04 and reasonable attorney fees.

. . .

(3) In order to find an action . . . frivolous under sub.(1), the court must find one or more of the following:

. . .

(b) The party or the party’s attorney knew, or should have known, that the action, special proceeding counterclaim, defense or cross complaint was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

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[*P46] An analysis of frivolousness under Wis. Stat. § 814.025(3)(b) presents a mixed question of fact and law. State v. State Farm Fire & Cas. Co., 100 Wis. 2d 582, 601-02, 302 N.W.2d 827 (1981). A determination of what the party knew or should have known is a question of fact. Id. A conclusion as to whether what was known, or should have been known, warrants a finding of frivolousness is a question of law which we review de novo. Stern v. Thompson & Coates, Ltd., 185 Wis. 2d 220, 241, 517 N.W.2d 658 (1994). In this case, the fundamental facts were sufficiently established to render our analysis here to be solely a question of law. This analysis is based upon an objective standard: “‘whether the attorney knew or should have known that the position taken was frivolous as determined by what a reasonable attorney would have known or should have known under the same or similar circumstances.’” Id. (quoting Sommer v. Carr, 99 Wis. 2d 789, 799, 299 N.W.2d 856 (1981)). All doubts on this issue are resolved in favor of the party or attorney. Zinda v. Krause, 191 Wis. 2d 154, 176, 528 N.W.2d 55 (Ct. App. 1995); In re Paternity of James A. O., 182 Wis. 2d 166, 184, 513 N.W.2d 410 (Ct. App. 1994).

[*P47] In this review, we have concluded that Rabideau’s complaint, liberally construed, encompassed a claim for property loss. Additionally, we have concluded that Rabideau’s complaint for damages for the intentional infliction of emotional distress was properly brought, although the elements for that claim were not satisfied. Finally, as to Rabideau’s claim for damages based upon the negligent infliction of emotional [**509] distress, her brief to the court of appeals, as well as her arguments before this court, adequately defended her position. We conclude that she has set forth a substantial argument in good faith for an extension, modification or reversal of existing law. As a result, we reverse the circuit court’s finding of frivolousness. n12

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n12 At oral argument counsel for Rabideau raised for the first time the issue of recovering damages for loss of companionship. Because this issue was neither raised in the petition for review nor argued in the briefs, we do not address it.

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By the Court.-The decision of the court of appeals is affirmed in part, reversed in part, and the cause remanded to the circuit court.

CONCURBY: SHIRLEY S. ABRAHAMSON

CONCUR: [*P48] SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (concurring). I agree with the majority opinion’s conclusions about intentional infliction of emotional distress, negligent infliction of emotional distress, property damage, and the issue of frivolousness. The only cause of action in this case is for property loss.

[*P49] I wish to emphasize that this case is about the rights of a pet owner to recover in tort for the death of her dog. Scholars would not classify this case as one about animal rights.

[*P50] Professor Martha Nussbaum has pointed out that one’s love of a pet should not be mistaken for concern about the ethical rights of animals. n13 Professor Nussbaum explains this error as follows:

[**510]

Commonly, we conflate two sorts of people: animal lovers and people who are sensitive to the ethical rights of animals. [***807] This conflation is a great error. In human life, we can easily take its measure: men may be genuine lovers of women while treating them extremely badly. . . . Even people who treat well the particular women they love may not care at all about women’s rights generally. n14

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n13 See Martha C. Nussbaum, Book Review: Animal Rights: The Need for a Theoretical Basis, reviewing Steven M. Wise, Rattling the Cage: Toward Legal Rights for Animals, 114 Harv. L. Rev. 1506 (2001).

n14 Id. at 1544.

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[*P51] Professor Nussbaum further explains the difference between animal lovers and proponents of animal rights by noting that while many of us have affectionate relationships with animals such as dogs and cats and horses, we also eat meat and eggs and wear leather, and we do not concern ourselves with the conditions under which these goods are produced. n15

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n15 Id. at 1509-10.

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[*P52] For purposes of recovery for negligent infliction of emotional distress, this court treats the death of a dog the same as it treats injury to or death of a best friend, a roommate, or a nonmarital partner: It allows no recovery.

[*P53] Having concluded that the plaintiff’s only remedy is for loss of property, the majority opinion declines to give guidance to the circuit court and litigants about damages for the death of the dog. This issue was not briefed. At least one state has enacted a law that allows up to $ 4,000 recovery for non-economic damages such as loss of the reasonably expected companionship, love, and affection of a pet resulting from the intentional or negligent killing of the pet. n16 Such a statute allows the legislature to make a considered policy judgment regarding the societal value of pets as [**511] companions and to specify the nature of the damages to be awarded in a lawsuit. n17

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n16 See Tenn. Code Ann. § 44-17-403 (2001).

n17 See 1 Dan B. Dobbs, Law of Remedies § 5.15(3), at 898-900 (2d ed. 1993) (discussing courts’ varied approaches toward damage awards in cases involving injuring or killing of a pet).

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[*P54] For the reasons set forth, I write separately.

Mary Morgan v. Zane Kroupa

No. 95-594

SUPREME COURT OF VERMONT

167 Vt. 99; 702 A.2d 630; 1997 Vt. LEXIS 245

September 5, 1997, Filed

SUBSEQUENT HISTORY: [***1]

As Amended.

PRIOR HISTORY: On Appeal from Addison Superior Court. Matthew I. Katz, J.

DISPOSITION: Affirmed.

COUNSEL: Beth Robinson of Langrock Sperry & Wool, Middlebury, for plaintiff-appellee.

Christena M. Obregon, Burlington, for defendant-appellant.

JUDGES: PRESENT: Gibson, Dooley, Morse and Johnson, JJ., and Allen, C.J. (Ret.), Specially Assigned. GIBSON, J., dissenting.

OPINIONBY: MORSE

OPINION:

[**631] [*100] MORSE, J. Defendant Zane Kroupa appeals from a judgment awarding possession of a dog named Boy (a/k/a Max) to plaintiff Mary Morgan. We affirm.

Defendant adopted a mixed-breed puppy when it was six to eight weeks old and trained it to be a hunting dog. In July 1994, when the dog was five years old, it broke free of its collar, ran away and became lost.

Defendant immediately informed his friends and local businesses, and notified the Addison County Humane Society of the dog’s escape.

About two weeks later, plaintiff found the dog walking down Route 17 in the Town of Addison and brought it home. She called the Addison County Humane Society and gave a description of the dog; the Humane Society [***2] told her to keep the dog until she, or they, could find the owner. She apparently never heard back from them. Plaintiff also posted notices in three State Parks and four general stores in the area, and arranged to have a local radio station broadcast at least two announcements concerning the dog. Although defendant resided in Addison, a rural town of approximately 1,000 residents, he allegedly did not locate the dog for more than one year after it became lost.

Plaintiff took care of the dog and fed and sheltered it. She considered it the household pet. In September 1995, a friend of defendant’s told him that he had seen the dog at a house only two miles down the road. Defendant drove to the house, which belonged to plaintiff’s boyfriend, and sought unsuccessfully to have the dog returned. As defendant prepared to leave, however, the dog jumped in [*101] his truck and defendant left with the animal. Shortly thereafter, plaintiff brought this action in replevin to recover the dog.

The trial court, sitting without a jury, ruled in favor of plaintiff and returned Max to her. In so holding, the court noted that the case could be analyzed under several different theories. The first was to treat [***3] the matter as a simple property case, applying the Vermont “lost property” statute, 27 V.S.A. §§ 1101-1110. The second was to analogize it to a child custody case, inquiring into what was in the “best interests” of the dog.

The third was to base the judgment on the emotional “attachment” of the contending parties. The trial court essentially chose the [**632] first approach, ruling that plaintiff had “substantially complied” with the statute and was therefore entitled to possession.

Vermont’s lost property statute provides that a person who finds money or goods, to the value of $ 3.00 or more, or takes up a stray beast, the owner of which is not known, shall, within six days thereafter, make two notices, describing such money, goods or beast, with the natural or artificial marks, with the time and place of finding or taking up the same, and post them in two public places in town in which such property was found.

27 V.S.A. § 1101. If the value of the property exceeds $ 10.00, the finder must additionally “immediately cause a copy of the notice to be published three weeks successively in some newspaper circulating in such town.” 27 V.S.A. § 1103. If the owner does not appear and claim the [***4] property within twenty days of the notice, the finder must additionally “cause a copy of the notice to be recorded in the office of the clerk of such town.” 27 V.S.A. § 1104. Should the owner not claim the property within ninety days, other provisions of the statute allow the finder to “sell it at public auction” and retain a portion of the proceeds to defray the “expenses of keeping the property,” the balance to be “paid to the town treasurer,” 27 V.S.A. § 1105, and to further “put such beast to reasonable labor . . . allowing the owner a reasonable compensation therefor.” 27 V.S.A. § 1109.

From its plain terms and judicial application over time it is evident that the statute — which dates from the late-eighteenth and early-nineteenth centuries — was designed for agricultural animals of substantial monetary value, not lost pets. Although no direct legislative history is extant, the legislature undoubtedly intended the phrase “stray beasts” to include, as the trial court here observed, “animals [*102] that had very significant value” such as cows, oxen, horses, sheep, swine and other farm animals that formed the basis of a largely agricultural economy. The specific and exacting notice [***5] requirements, provision for public auction, and the allowance for “putting such beasts to reasonable labor” all presume, and seek to protect the owner’s and finder’s interest in, an animal of significant financial value. 27 V.S.A. § 1109.

Similar economic concerns inform 20 V.S.A. § 3411, which grants the right to “impound a beast” found in one’s “enclosure.” The impounder must give the owner prompt notice or post an advertisement if the owner is unknown, and, if the owner does not appear, the impounder may sell the beast at public auction. Id. §§ 3413, 3419, 3420, 3421. The purpose of the statute is to provide a “prompt and speedy” return or disposition of animals of considerable economic value. Harriman v. Fifield, 36 Vt. 341, 346 (1863).

This construction is amply supported by over 170 years of case law, during which time numerous reported decisions have construed and applied 20 V.S.A. § 3411 and 27 V.S.A. § 1110. These decisions have generally involved disputes between neighbors over stray or impounded farm animals.

See, e.g., Dunbar v. Godbout, 105 Vt. 448, 168 A. 551 (1933) (cattle); Andrews v. Carl, 77 Vt. 172, 59 A. 167 (1904) (heifer calf); Howard v. Bartlett, 70 [***6] Vt. 314, 40 A. 825 (1898) (cattle); Mattison v. Turner, 70 Vt. 113, 39 A. 635 (1897) (cattle); Chaffee v. Harrington, 60 Vt. 718, 15 A. 350 (1888) (horse); Bowman v. Brown, 55 Vt. 184 (1882) (cow); Dudley v. McKenzie, 54 Vt. 394 (1882) (sheep); Porter v. Aldrich, 39 Vt. 326 (1866) (oxen); Keith v. Bradford, 39 Vt. 34 (1866) (cattle); Boothe v. Fitzpatrick, 36 Vt. 681 (1864) (bull); Harriman, 36 Vt. 341 (cows); Riker v. Hooper, 35 Vt. 457 (1862) (horse); Edwards v. Osgood, 33 Vt. 224 (1860) (bull); Hooper v. Kittredge, 16 Vt. 677 (1844) (horses); Moore v. Robbins, 7 Vt. 363 (1835) (sheep).

No decision has ever applied the lost-property or impounding statutes to any kind of “beast” other than a farm animal of considerable value.

Since dogs have been mankind’s companion throughout the ages, one could safely assume that if the statute applied to disputes over domestic pets some decision over the last two centuries would have said so. The case law thus strongly supports the inference that the statute was not designed to govern the present situation, involving a lost pet dog. A pet dog generally has no substantial market value as such; it generally [**633] cannot be “put . . . to . . . labor” [***7] or sold at “public auction” as contemplated by the statute. 27 V.S.A. §§ 1105, 1109. [*103] Here, for example, we are dealing with a mixed-breed dog that was given away as a puppy and was five or six years old when it became lost. Like most pets, its worth is not primarily financial, but emotional; its value derives from the animal’s relationship with its human companions. As the trial court here observed, “a dog like Max may have a lot of emotional value but there’s nothing in the record to suggest that the dog has a fair market value of any significance.”

Thus, modern courts have recognized that pets generally do not fit neatly within traditional property law principles. “[A] pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property.” Corso v. Crawford Dog & Cat Hosp., Inc., 97 Misc. 2d 530, 415 N.Y.S.2d 182, 183 (Civ. Ct. 1979). Ordinary common law or statutory rules governing lost personal property therefore do not provide a useful framework for resolving disputes over lost pets. Instead, courts must fashion and apply rules that recognize their unique status, and protect the interests of both owner and finder, as well as the public. In [***8] this regard, the trial court was correct that family law provides an imperfect analogue.

However strong the emotional attachments between pets and humans, courts simply cannot evaluate the “best interests” of an animal. Recognizing, however, the substantial value that society places on domestic animals, it is proper that the law encourage finders to take in and care for lost pets. A stray dog obviously requires care and shelter, and left unattended could pose hazards to traffic, spread rabies, or exacerbate an animal overpopulation problem if unneutered. A rule of decision that made it difficult or impossible for the finder to keep the animal after many months or years of care and companionship might deter these salutary efforts, and would not be in the public interest.

The value of a pet to its human companions has already been noted. Accordingly, apart from providing care and shelter, finders of stray pets should also be encouraged to make every reasonable effort to find the animal’s owner. Although circumstances will vary, this might include contacting the local humane society, veterinarians, or the police department, posting notices near where the animal was found, and placing [***9] newspaper or radio advertisements. Additionally, owners of lost pets should be enjoined to undertake reasonable efforts to locate their animals by contacting local humane societies and other appropriate agencies, printing and placing notices, or taking out appropriate advertisements. Together these requirements provide an incentive to finders to care for stray pets and attempt to locate their [*104] owners, and place the onus on owners to conscientiously search for their pet.

When confronted with a case of this nature, therefore, courts should factor these practical and policy considerations into any decision.

Indeed, this was essentially the approach taken by the trial court here. Although couched in terms of “substantial compliance” with the lost-property statute, the court basically held that where the finder of a lost pet makes a reasonable effort to locate its owner, and responsibly cares for the animal over a reasonably extensive period of time, the finder may acquire possession of the animal. As the court explained, “The court’s going to decide this case on the basis that [plaintiff] found a stray dog, cared for it for a year, [and] did put up notice when she found it . . [***10] . . If you pick up a stray which does not have a market value to speak of, if you have put up notices . . . . I think that’s what the law requires and after a passage of time you’re entitled to keep the dog.”

Having found that plaintiff diligently attempted to locate the dog’s owner and responsibly sheltered and cared for the animal for over a year, the trial court was clearly within its discretion in awarding possession to plaintiff. We will not set aside findings made by a trial court unless clearly erroneous, nor disturb its conclusions if they are supported by its findings. Cameron v. Double A. Services, Inc., 156 Vt. 577, 581-82, 595 A.2d 259, 261-62 (1991). Defendant raises two claims of error, neither of which is persuasive.

First, he contends the trial court erred in ruling that plaintiff had substantially complied with the [**634] notice provisions of the lost-property statute. Having concluded that the statute does not apply in these circumstances, we find the argument to be wide of the mark.

Second, he claims a right to possession under the property law principles of trover and conversion. See Economou v. Carpenter, 124 Vt. 451, 453-54, 207 A.2d 241, 243 (1965) (“‘In the sense [***11] of the law of trover, a conversion consists either in the appropriation of the property to the party’s own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it in exclusion and or defiance of the owner’s right, or in withholding possession from the owner under a claim of title inconsistent with his title.’”) (quoting C.H. Eddy & Co. v. Field, 85 Vt. 188, 189, 81 A. 249, 250 (1911)). As discussed earlier, however, “property” in domestic pets is of a highly qualified nature, possession of which may be subject to limitation and control. For example, 20 V.S.A. § 3511 provides that an animal shall be “deemed to be abandoned” if placed in the custody of a veterinarian or kennel and not removed at the end of the agreed time period. [*105] Animals in the possession of an incorporated humane society may be disposed of by any method it deems appropriate. 20 V.S.A. § 3909. Domestic pets suspected of having been exposed to rabies may be confined or impounded, 20 V.S.A. § 3806, and “vicious” domestic pets may be removed from the owner and “disposed of in a humane way.” 20 V.S.A. § 3546(c).

Thus, possession of domestic pets may be, and often is, limited by overriding public [***12] interests. In this case, as explained above, the public interest in encouraging finders to care for and shelter lost pets necessarily qualifies the owner’s right to possession. Where, as here, the finder of a lost domestic animal diligently attempts to locate its owner and provides care, shelter and companionship to the animal for over a year, a trial court does not abuse its discretion in awarding possession to the finder.

The dissent raises two concerns. First, it challenges the exclusion of lost pets from the lost-property statute because of the supposed difficulty in distinguishing “between animals kept for economic reasons and those kept as pets.” Vt. at , 702 A.2d at 636. The Court’s opinion draws no such distinction. As noted, the statute expressly applies to animals that can be put to “labor” and sold at “auction,” i.e., agricultural animals with substantial economic value. The fact that a horse may also be considered to be a pet does not remove it from this category. A pet dog, cat or hamster generally does not fall within this class. There may be the rare exception, such as a working sheep dog, which could fall within the statute, but the exception only proves the rule.

The dissent’s [***13] second concern is that the Court’s opinion will somehow encourage a black market in stolen pets. The requirements that a finder make reasonable and diligent efforts to locate the owner — in this case by posting notices, placing newspaper advertisements, contacting the humane society, and arranging for radio announcements — precludes the unscrupulous from asserting rights in a stolen pet. The dissent’s argument suggests that someone would conspire to: (1) steal a pet, (2) diligently proceed to contact the police, the humane society, and local newspaper and radio stations, all with the hope that the owner will somehow overlook these efforts, and finally, (3) retain the pet for a year or more, all with the ulterior purpose of ultimately selling the animal. Black marketeers do not, however, publicize their stolen wares, nor do they retain them for long periods. Nothing in the Court’s opinion, in short, will provide the slightest advantage to such scoundrels.

Affirmed.

FOR THE COURT:

Associate Justice

DISSENTBY: GIBSON

DISSENT:

[*106] GIBSON, J., dissenting. Because I believe that Vermont’s lost-property statute, 27 V.S.A. §§ 1101-1110, rejected by the Court herein, outlines the rights and responsibilities [***14] of both true owners and finders of stray domesticated animals, including dogs, and that, under the provisions of that statute, Boy (a/k/a Max) should be returned to defendant, I respectfully dissent.

The Court does not appear to dispute the long-settled, common-law rule that a finder of lost personal property has title that is [**635] superior to all but the true owner, see Campbell v. Cochran, 416 A.2d 211, 221 (Del. Super. Ct. 1980); that Vermont’s lost-property statute reflects this common-law principle; or that the statute governs ownership and compensation rights in disputes over stray domesticated animals such as livestock. Instead, the Court asserts that the statute’s application to “stray beasts” does not include pet dogs.

We have not previously needed to decide whether a dog is a “beast” under our lost property and impounding statutes. n1 See Vosburgh v. Kimball, 130 Vt. 27, 30, 285 A.2d 766, 768 (1971). There is no indication, however, that the Legislature intended to exclude certain species of domesticated animals.

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n1 Vermont’s impounding law also applies to “beasts” and allows a person to impound any “beast” found on his land doing damage. 20 V.S.A. § 3411. Like the lost-property statute, where the true owner is unknown, the impounder must post notice. Id. § 3420. The impounder may sell the animal if the owner fails to appear within thirty days and claim it, but must return it when the owner appears and compensates the impounder for the damage and for the expense of keeping and advertising the animal. Id. § 3421.x

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Nor is there any logical reason to separate dogs from other domesticated animals, see Mungo v. Bennett, 238 S.C. 79, 119 S.E.2d 522, 523 (S.C. 1961) (grouping horses, mules, cattle, dogs, and cats), all of which are legally classified as personal property. See Richardson v. Fairbanks North Star Borough, 705 P.2d 454, 456 (Alaska 1985) (dogs have legal status as personal property); State v. M’Duffie, 34 N.H. 523, 526 (1857) (“Dogs are . . . as much the subject of property or ownership, as horses, cattle or sheep.”); accord Thiele v. City of Denver, 135 Colo. 442, 312 P.2d 786, 789 (Colo. 1957); Levine v. Knowles, 197 So. 2d 329, 331 (Fla. Dist. Ct. App. 1967); Smith v. Costello, 77 Idaho 205, 290 P.2d 742, 743 (Idaho 1955); Jankoski v. Preiser Animal Hosp. Ltd., 157 Ill. App. 3d 818, 510 N.E.2d 1084, 1086, 110 Ill. Dec. 53 (Ill. App. Ct. 1987); cf. Conti v. ASPCA, 77 Misc. 2d 61, 353 N.Y.S.2d 288 (Civ. Ct. 1974) (where finder of escaped pet parrot refused to return bird to owner, court found parrot was domesticated and ordered return to owner under common-law rule of lost property). Further, the dictionary defines “beast” as “an animal [*107] as distinguished from a plant,”

and “a lower animal as distinguished from man,” Webster’s New Collegiate Dictionary 96 (1981), making no [***16] distinction between dogs and other animals.

In this case, the Court follows neither the lost-property statute nor the generally accepted common-law rule. Instead, without benefit of citation to any supporting authority, the Court fashions its own solution in a manner that will be difficult, if not impossible, to apply in a consistent manner in future cases. The Court asserts that the statute applies only to animals having “significant value.” n2 Vt. at , 702 A.2d at 632. Exclusion of dogs from the lost-property statute based on lack of market value is indefensible, however. The statute deals solely with rights of ownership and compensation for expenses. The statute’s notice provisions apply to any stray animal regardless of value, while a finder of goods or money must post notices only if the value is $ 3 or more, 27 V.S.A. § 1101; if the value of found property exceeds $ 10, additional newspaper notice is required. Id. § 1103. Thus the issue of value arises only in determining the type of notice a finder must give.

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n2 The Court also supports its holding with the assertion that pet dogs are not sold at auction. Vt. at , , 702 A.2d at 632, 633. In fact, however, it is not uncommon for dogs and cats to be sold at auction to research facilities.

See 7 U.S.C. § 2137 (“It shall be unlawful for any research facility to purchase any dog or cat from any person except an operator of an auction sale subject to section 2142 of this title or a person holding a valid license as a dealer or exhibitor . . . .”) (emphasis added); see also 27 V.S.A. § 1105 (providing for sale of unclaimed property at public auction).

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To the extent that the financial value of pets, as opposed to livestock, is relevant, other jurisdictions have acknowledged in different settings that pet dogs do have value beyond that reflected by a pure market-value analysis and have adopted means to measure that value. See Levine, 197 So. 2d at 331-32 (owner of pet Chihuahua could recover compensatory damages for intrinsic value and perhaps punitive damages); Jankoski, 510 N.E.2d at 1087 (actual value of pet dog could include sentimental [**636] value); Fredeen v. Stride, 269 Ore. 369, 525 P.2d 166, 168 (Or. 1974) (jury could consider mental distress as element of damages for loss of pet dog under certain circumstances); see generally P. Barton & F. Hill, How Much Will You Receive in Damages From the Negligent or Intentional Killing of Your Pet Dog or Cat?, 34 N.Y.L. Sch. L. Rev. 411 (1989). Thus, a pet dog of even mixed breeding could have significant financial value, and the Court’s distinction on the basis of financial value is unjustified.

Further, a clear line cannot always be drawn between animals kept for economic reasons and those kept as pets. Many people who keep [*108] livestock become emotionally attached to individual animals. Conversely, dogs [***18] may be owned primarily or solely for their economic value as work dogs or breeding stock. And there are animals that fall somewhere in between, such as pleasure horses — livestock that are not kept for their economic value, but are, in effect, large pets. To separate some species of domesticated animals from others on an attempted livestock-pet dichotomy is a purely arbitrary interpretation of the statute.

Although the Court believes its holding will encourage finders of lost animals to take them in and give them a home, I am concerned about the consequences of removing pets from the animal-theft protections of the lost-property statute. The lost-property statute was designed in part to remove incentives for animal theft and make it difficult for the finder to profit from selling a stray animal. See 27 V.S.A. § 1105 (if finder sells unwanted stray animal, proceeds of sale go to town after reimbursing finder for expenses). The Court, however, holds that any person who “finds” a dog and makes a “reasonable” effort to locate the owner may claim title to the animal superior to that of the true owner after an undefined “reasonable” amount of time.

Despite the Court’s professions to [***19] the contrary, I cannot agree that plaintiff made a “reasonable effort” or “diligently attempted” to locate the dog’s owner. Vt. at , 702 A.2d at 633. Although she posted notices, they simply read “lost dog” and listed a phone number, without describing the dog’s breed, sex, approximate age (puppy or adult), color, markings or distinctive features, or whether the dog had a collar. While plaintiff also requested community-service radio ads, these ran for two days only, and there is no indication they were any more detailed than her posted notices. Thus, plaintiff failed to provide even the minimal notice necessary to qualify as “reasonable,” much less comply with the lost-property statute. See Chaffee v. Harrington, 60 Vt. 718, 720-21, 15 A. 350, 351 (1888) (requirements of statute relating to rights and duties of finder of stray beast must be strictly complied with; plain purpose of statute in requiring that animal be described by natural or artificial marks is that owner and others who see ads may be able to recognize or identify animal).

An unfortunate consequence of the Court’s opinion will be to give those who operate the nation’s black market in stolen pets an easier means to gain title [***20] and profit from pets that are not their own. The history of attempts to curb the trade in stolen pets demonstrates the seriousness of the problem. Due in large part to the pervasiveness of [*109] pet theft, Congress enacted the Animal Welfare Act (AWA) in 1966. 7 U.S.C. § 2131 (1988) (purpose includes “protecting the owners of animals from the theft of their animals”); R. Masonis, The Improved Standards for Laboratory Animals Act and the Proposed Regulations: A Glimmer of Hope in the Battle Against Abusive Animal Research, 16 B.C. Envtl. Aff. L. Rev. 149, 153 (1988) (statute prompted by need to curb illicit trade of stolen household pets). The law requires licensing and record keeping for all dealers and research facilities using live dogs and cats. 7 U.S.C. §§ 2133, 2134, 2136, 2140 (1988).

In 1987 the United States Department of Agriculture noted that there was still evidence of “buying and selling obviously stolen animals and of a few research facilities obtaining animals under questionable circumstances,” observing that the net effect of certain activities was to “encourage animal theft for profit.” 61 Fed. Reg. 10,298, 10,305, 10,307 (1987). Enforcement in the past was lax, with [***21] only three criminal prosecutions and [**637] 122 administrative prosecutions against AWA violators from 1968 to 1980. Masonis, supra, 16 B.C. Envtl. Aff. L. Rev. at 156-57. In response, the statute was amended in 1990, see 7 U.S.C. §§ 2158-2159 (Supp. 1990), to further discourage the theft and sale of pets and allow, where possible, stolen pets to be reunited with their owners. N. Wilks, The Pet Theft Act:

Congressional Intent Plowed Under by the United States Department of Agriculture, 1 Animal L. 103, 103 (1995). Nonetheless, criticism for failure to enforce the act continues. Id. at 122-24.

The Vermont Legislature acknowledged the problem of pet theft in 1968 when it also criminalized the theft of domesticated animals. n3 1967, No. 365 (Adj. Sess.), § 7 (now codified, as amended, at 13 V.S.A. § 361(a)). It is difficult, however, to prove criminal intent when dogs in particular are known to be able to escape from fenced yards or from tethers and willingly respond to offers of food or attention from strangers. Thus, owners seeking to recover their lost pets will often look to the civil law for a remedy. Today’s decision largely closes that avenue of relief.

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n3 A person commits the crime of interference with domestic animals if he “confines or secretes a domestic animal owned by another, with the intention of concealing its identity or the identity of its owner” or if he conceals “the fact that the animal is licensed by removing the collar, harness or identification . . . from any . . . domestic animal owned by another.” 13 V.S.A. § 361(a) (original version at 13 V.S.A. § 482). The crime is punishable by imprisonment for up to one year or a fine up to $ 2,000, or both. Id. § 361(b).

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[*110] Because the statute provides a clear, consistent, and just approach to settling disputes between finders and owners of stray domesticated animals, and because it includes safeguards to protect pet owners from theft, I respectfully dissent. I am authorized to say that Chief Justice Allen joins in this dissent.

Associate Justice

CARL BUECKNER, Appellant v. ANTHONY HAMEL AND KATHY COLLINS, Appellees

No. 01-94-00010-CV

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

886 S.W.2d 368; 1994 Tex. App. LEXIS 2168

August 25, 1994, Rendered and Delivered
August 31, 1994, Filed

PRIOR HISTORY: [**1] On Appeal from the 55th District Court. Harris County, Texas. Trial Court Cause No. 90-24765. JOE BLACKBURN, Judge

DISPOSITION: Judgment affirmed

COUNSEL: For Appellant: FRANK C. FARISS, HOUSTON, TEXAS.

For Appellees: DON M. BARNETT, HOUSTON, TEXAS.

JUDGES: Hedges, Duggan, Andell

OPINIONBY: ADELE HEDGES

OPINION: [*370] OPINION

Appellant, Carl Bueckner, challenges an award of $ 1,450 actual damages and $ 2,500 punitive damages in favor of appellees, Anthony Hamel and Kathy Collins, for the negligent, careless, or intentional killing of appellees’ dogs. n1 We affirm.

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n1 In its findings of fact, the trial court found that appellees suffered actual damages of $ 1825 and allowed Bueckner a credit of $ 375. The award of actual damages was $ 1450 in the conclusions of law and in the judgment. Any apparent discrepancy is resolved by deducting $ 375 from $ 1825.

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Fact Summary

On November 8, 1989, Bueckner shot two dogs, a dalmatian and an Australian shepherd, belonging to appellees. He was in a deer stand when [**2] he observed a group of dogs chasing a doe and her fawn. The dogs were not on property owned by any of the parties. Bueckner was charged with cruelty to animals in connection with this incident. He pled no contest and was ordered to pay appellees $ 325 in restitution, which he did. Appellees then filed the present civil lawsuit charging Bueckner with negligently, carelessly, or intentionally killing their dogs.

The trial court entered the following conclusions of law and findings of fact, among others:

Findings of Fact

III. . . . .

E. The dogs killed by Defendant had a market value.

F. The dogs killed by Defendant had pecuniary value to the Plaintiffs.

G. The dogs killed by Defendant would have produced litters of puppies valuable to the Plaintiffs.

H. The dogs killed by Defendant had intrinsic value to the Plaintiffs and were companions to the Plaintiffs.

I. The dogs killed by Defendant had special value to the Plaintiffs and were loved as pets by the Plaintiffs.

J. Plaintiffs have sustained actual damages in the amount of $ 1825.00.

K. Defendant is allowed a credit of $ 375.

Conclusions of Law

1. Each and all of the acts of the Defendant [**3] were intentional and were a proximate cause of the incident made the basis of this suit and the resulting damages to the Plaintiffs.

2. No acts of Plaintiffs were proximate or contributing cause of the incident in question.

3. There was no prior settlement or accord and satisfaction.

4. Plaintiffs are entitled to judgment of and from the Defendant, Carl Bueckner, for the following amounts:

a. $ 1,450.00 for Plaintiff’s actual damages plus prejudgment interest on this amount at the rate of 10% per annum from the date of the filing of this lawsuit, May 15, 1990;

b. $ 2,500.00 in punitive damages;

c. all costs of court plus postjudgment interest at the rate of 10%.

Damages

In his first three points of error, Bueckner argues that the trial court’s finding of actual damages cannot be based on the value of prospective puppies. He contends that once the value of the unborn puppies is subtracted from the actual damages, the evidence is legally and factually insufficient to support a finding of $ 1825 actual damages.

Texas law recognizes a dog as personal property. Arrington v. Arrington, 613 S.W.2d 565, 569 (Tex. Civ. App.–Fort Worth 1981, no writ). [**4] As owners of the dogs, appellees are entitled to recover for their wrongful destruction. City of Garland v. White, 368 S.W.2d 12, 16 (Tex. Civ. App.–Eastland 1963, writ ref’d n.r.e.).

The contention that actual damages cannot be based on the value of prospective progeny is supported by three arguments: (1) that measure of damages represents speculative consequential damages not allowed by law; [*371] (2) there is no evidence to support an award for damages for prospective puppies; and (3) there is insufficient evidence to support such an award. We agree in part and disagree in part.

The value of unborn offspring is highly uncertain. Our research indicates that the issue of damages for prospective progeny has not been addressed in many years. In the mature case of Claunch v. Osborn, 23 S.W. 937, 938 (Tex. Civ. App. 1893, no writ), the court reversed a judgment awarded for injuries sustained when the defendant’s stock was turned into the plaintiff’s pasture. The plaintiff alleged that the defendant’s stock interfered with the breeding habits of his mules, prohibiting them from reproducing. The court held that the “portion of the amended original petition asking [**5] for damages for loss of prospective mule colts should have been stricken, . . . as the same was speculative, and not recoverable.” Id. We think that this law, though hoary, is still sound.

We hasten to make a distinction between the value of the deceased animal itself and that of its progeny. In Heiligmann v. Rose, 81 Tex. 222, 16 S.W. 931 (Tex. 1891), the court was asked to define the value of plaintiff’s deceased dogs for the purpose of assessing actual damages. The court wrote that

The special charge asked by [plaintiff], 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.

Id. at 932. It is clear that the measure of damages arises from the animal itself, not from its future progeny. Of course, in some circumstances, breeding potential may be considered in the value of an animal. If a triple crown winning thoroughbred horse were killed the day before it was put out to stud, and there was evidence that the animal was at least potentially [**6] fertile, a court might properly consider the pecuniary value of the horse in assessing either its market value (what someone else would pay for it) or its pecuniary value to the owner (reasonably expected stud fees over the life of the animal, discounted to present value). In that instance, the court would look to the animal itself, not to the sales price of its colts, to determine damages.

In this case, we must assess the value of the dogs themselves, not that of their unborn puppies. The record shows the following:

1. The dalmatian was a two-year old female purebred registered with the American Kennel Club.

2. The Australian shepherd was a three-year old female purebred registered with the Australian Shepherd Club.

3. Appellees planned to breed both dogs and had picked out a male for the Australian shepherd.

4. Each female dog could be expected to breed once a year and produce six or eight puppies.

5. The Australian shepherd had already mated with a labrador, and appellees had given the puppies away.

6. The dogs were purchased for the purpose of breeding them with purebred males and selling their puppies. Each had a value based on the puppies she [**7] produced.

7. Market value for dalmatian puppies ranges from $ 125 to $ 400 each and from $ 125 to $ 700 each for Australian shepherd puppies.

We must decide whether this evidence is legally and factually sufficient to support the trial court’s finding of $ 1825 actual damages based on the value of the dalmatian and the Australian shepherd.

Standard of Review

In reviewing no evidence points, this Court considers only the evidence and inferences, when viewed in their most favorable light, that tend to support the finding, and disregards all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex. 1988). If there is any evidence of probative force to support the finding, the point must be overruled and the finding upheld. Sherman v. First Nat’l Bank, 760 S.W.2d 240, 242 (Tex. 1988); In re [*372] King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (Tex. 1951).

In reviewing factual sufficiency points, the Court examines all of the evidence. Glockzin v. Rhea, 760 S.W.2d 665, 666 (Tex. App.–Houston [1st Dist.] 1988, writ denied). Having considered and weighed all of the evidence, this Court [**8] will set aside the verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Otis Elevator Co. v. Joseph, 749 S.W.2d 920, 923 (Tex. App.–Houston [1st Dist.] 1988, no writ). We cannot substitute our opinion for that of the trier of fact and determine that we would reach a different conclusion. Glockzin, 760 S.W.2d at 666.

Applying the no evidence standard to the record before us, we find that there is probative evidence to support the trial court’s award of $ 1825 actual damages based on the pecuniary value of the dogs to appellees. Further, we do not find that the evidence to support this award is so weak or so against the great weight and preponderance of the evidence as to make it manifestly unjust. Accordingly, we find that the evidence is legally and factually sufficient to support the trial court’s finding of actual damages.

We overrule points of error one, two, and three.

Leash Law

In point of error four, Bueckner contends that under the Texas leash law, he is exempt from liability for the [**9] death of the dogs. We disagree. Bueckner relies on Tex. Health & Safety Code Ann. 822.033 (Vernon 1992), which provides:

(a) A dog that is attacking, is about to attack, or has recently attacked sheep, goats, calves, or other domestic animals or fowls may be killed by any person witnessing or having knowledge of the attack.

(b) A person who kills a dog as provided by this section is not liable for damages to the owner of the dog.

Deer are not specifically enumerated among the protected animals. Therefore, in order for this section to apply, deer must be classified as domestic animals. Domestic animals are defined as animals that are habituated to live in or about the habitations of men, or that contribute to the support of a family. Powers v. Palacios, 794 S.W.2d 493, 497 (Tex. App.–Corpus Christi 1990), rev’d on other grounds, 813 S.W.2d 489 (Tex. 1991) (citing Black’s Law Dictionary, 434 (5th ed. 1979)). Clearly, deer are not included within these classifications. The attack on the deer did not justify the shooting under section 822.033.

Additionally, an attack on a protected animal must be in progress, imminent, or recent. Tex. Health & Safety Code [**10] Ann. 822.033(a). The record shows only that the dogs had attacked cattle within the month before the shooting. We do not believe that this type of attack fits within the absolution provided by the statute.

We overrule point of error four.

Accord and Satisfaction

In point of error five, Bueckner argues that the award of actual damages was barred by accord and satisfaction. He contends that because he paid appellees $ 325 in restitution in the criminal proceeding, any obligation he owed them has been discharged. We disagree.

An accord requires a bargaining evidenced in a new contract, either express or implied, which replaces an old agreement. City of Houston v. First City, 827 S.W.2d 462, 472 (Tex. App.–Houston [1st Dist.] 1992, writ denied). In this new contract, the parties mutually agree that one party may give or perform and the other will accept something that is different from what each was expecting from the old contract. Id. The satisfaction is the actual performance of the new agreement. Id. A valid accord and satisfaction requires that there initially be a legitimate dispute between the parties about what was expected.

Appellees [**11] filed criminal charges against Bueckner for cruelty to animals. The trial court ordered that he pay $ 325 in restitution [*373] to appellees. Bueckner admits that he never talked with appellees about the incident.

These facts do not reflect that an initial agreement existed between the parties. Therefore, appellant’s payment of the criminal restitution ordered can hardly be said to be the satisfaction of an accord. Rather, the payment merely represented Bueckner’s compliance with a judicial order.

We overrule point of error five.

We affirm the judgment of the trial court.

Adele Hedges

Justice

Justices Duggan and Andell also sitting.

Justice Andell concurring.

Judgment rendered and opinion delivered AUG 25 1994

CONCURBY: ERIC ANDELL

CONCUR: CONCURRING OPINION

I agree that the majority’s analysis and disposition of this case is correct. I write separately, however, to address what I consider to be a more substantial basis for affirming this award, namely, the intrinsic or special value of domestic animals as companions and beloved pets. The issue is whether bereaved pet owners must accept the market value of their pets as the measure of actual damages [**12] for their pets’ wrongful killing, or if they have the option of accepting either the market value or the special value. I consider the general rule of market value to be inadequate for assessing damages for the loss of domestic pets. For the reasons in the following analysis, I would hold that the pet owners have the option of accepting either measure of damages. Hence, I would affirm, but on different grounds.

In this case, Bueckner challenges the sufficiency of the evidence to support the award of $ 1450 in actual damages to compensate Hamel and Collins for the loss of their beloved pets. The trial court’s findings consisted of five separate categories of value: (1) market value; (2) pecuniary value to Hamel and Collins; (3) value to Hamel and Collins of prospective litters of puppies; (4) instrinsic value of the dogs to Hamel and Collins and the value of the dogs as companions to Hamel and Collins; and (5) special value to Hamel and Collins as beloved pets.

Bueckner focuses upon evidence of the market value of Freckles, the one-year-old Dalmatian, and Muffin, the two-year-old Australian Shepherd. Market value is the highest price a willing buyer would pay and [**13] a willing seller would accept to do business, both being fully informed, with the property in question being exposed to the market for a reasonable period of time. Star Houston, Inc. v. Kundak, 843 S.W.2d 294, 298 (Tex. App.–Houston [14th Dist.] 1992, no writ); Black’s Law Dictionary 876 (6th Ed. 1990). Bueckner claims that the evidence does not support a finding that Hamel and Collins were damaged in the amount of $ 1825. n1

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n1 As noted by the majority, the $ 375 discrepancy is a credit based on the amount of restitution Bueckner paid following his conviction of cruelty to animals. The restitution was $ 325, not $ 375, and the remaining $ 50 discrepancy is unexplained.

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -The first three of Bueckner’s five points of error exclusively challenge the speculative value of unborn puppies. n2 He has failed to assign points of error challenging the findings of fact that address the intrinsic value of beloved pets. Intrinsic value is not established by market forces, but is personal or sentimental. Kundak [**14] , 843 S.W.2d at 298. It has also been defined as the true, inherent, or essential value of the thing itself. Black’s Law Dictionary 739 (6th Ed. 1990). In emphasizing the objectively determinable market value, Bueckner ignores the value of the dogs as companions and as beloved pets. The value of dogs to the human families they share often has nothing to do with whether the dog has a pedigree that is registered with the American Kennel Club.

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n2 As the majority opinion indicates, the remaining two points of error address Bueckner’s claimed “leash law” defense and his claim of accord and satisfaction based on the $ 325 restitution in the criminal case.

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -In this case, Hamel and Collins contend on appeal that their testimony of the special value of Freckles and Muffin serves as an adequate basis for affirming this award of damages. I agree. Hamel and Collins testified that they had no children, and that they played with Freckles and Muffin and enjoyed their company. Freckles was an affectionate “lap dog” and Muffin [**15] “pretty well took care of everything . . . .” Both counsel argued at [*374] trial about whether this intangible value was an appropriate basis for the damages award:

[PLAINTIFFS' COUNSEL]: It says “special value and pecuniary.” We offered evidence on pecuniary. It didn’t come in the way I’d planned. I’m trying to show the intangible values. I think the case law I cite — the law I cited has the value of a pet to its owner. I’m just trying to elicit some way for the Court to assess the damages.

[DEFENSE COUNSEL]: He just says he can take any price he wants and make it a special value of the dog, but that’s no proven value.

[PLAINTIFFS' COUNSEL]: That’s what special value is.

THE COURT: Go ahead. I’ll value later.

(Emphasis added.)

Bueckner has not assigned a point of error asserting that the special value of Freckles and Muffin could not have amounted to $ 1825 total actual damages. Bueckner only claims that the evidence is insufficient to support a finding of $ 1825 for the market value of Freckles and Muffin along with their speculative offspring.

Bueckner contends that Hamel and Collins must elect from the market value on the one hand, [**16] and the instrinsic value as pets on the other hand, but that they are not entitled to recover both. He cites Young’s Bus Lines v. Redmon, 43 S.W.2d 266 (Tex. Civ. App.–Beaumont 1931, no writ), where the court reversed a $ 1,500 judgment for the death of a seeing-eye dog belonging to a blind man. In that case, Redmon had pleaded for a market value of $ 2,500 or, in the alternative, a special value of $ 2,500. Id. at 267. Redmon offered no evidence of the market value of the dog, and the judgment rested upon testimony that was confined to the special or intrinsic value of the dog to its owner. Id. The court held that the proper measure of damages was the market value if any, and in the absence of market value, the intrinsic or special value of the dog. Id. The court could not base its judgment upon evidence of intrinsic value unless Redmon were to have shown that there was no market value to use as the basis for the award. Id.

While I agree that Redmon requires this structured election of remedies, I do not agree that an animal’s market value, when there is one, necessarily represents the proper measure of damages to compensate pet owners for their loss. [**17] A domestic pet with no breeding potential might be worth only $ 10 in the market to someone else who wants it as a pet. But the animal could be a highly valued companion whose loss would be deeply felt. People who love and care for animals should not be forced to accept as compensation for their loss the amount that the animal would bring in the market. n3

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n3 A defendant wanting to minimize his liability might also argue that the market value of non-breeding domestic pets would be the amount that biomedical research laboratories would be willing to pay for the animal as an experimental subject. This would fit the legal definition of “market value” and, hence, would be the “proper measure of damages” required under Redmon. The resulting “compensation,” however, would be a cruel irony worked upon the bereaved pet owner.

Furthermore, as long as a laboratory somewhere would be willing to pay $ 10 (or even less) for a similar animal, and some animal owner would be willing to sell for that price, the plaintiffs cannot prove that the pet has zero market value. The fact that a specific plaintiff would refuse to accept a low amount will not suffice to disprove market value. The blind plaintiff in Redmon testified that he would not have accepted $ 5,000 for his trained seeing-eye dog. The court did not treat this as evidence that the dog was worth more than $ 5,000 in the market. Instead, the court treated this as evidence of special value, and held it inadmissible. 43 S.W.2d at 268. Such an analysis would prevent plaintiffs from ever presenting evidence of special or intrinsic value of pets.

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Bueckner does not contend that Hamel and Collins recovered for both the market value and the intrinsic or special value of Freckles and Muffin. He treats the entire award as though it represents the combined market values of Freckles, Muffin, and their prospective offspring. However, without an explicit correspondence in the findings of fact between the type of value assessed and the dollar amounts awarded, we do not know how the trial court assessed the damages. But we do have a finding that the animals did have a market value. Under Redmon, Hamel and Collins cannot recover for both the [*375] market value and the special value and they must take the market value unless they show that there is none. 43 S.W.2d at 267. Bueckner concludes that the $ 1825 finding must represent market value alone, and this is what he challenges on appeal.

Bueckner repeatedly insists that Freckles and Muffin had no market value and that their projected future litters of puppies were too speculative to have any market value. If we were to agree with this, then Hamel and Collins would be allowed to recover the intrinsic value of Freckles and Muffin. Hamel and Collins cite Heiligmann [**19] v. Rose, 81 Tex. 222, 16 S.W. 931 (Tex. 1891), for the principle that intrinsic value may be awarded in the absence of market value. The following passage from Heiligmann covers the rule:

Some authorities 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. . . . 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 [**20] 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.

16 S.W. at 932 (emphasis added).

In this passage, the supreme court did not articulate the prioritized scheme for election of remedies that the appellate court later used in Redmon. That is, the Heiligmann court simply stated that the value could be either the market value of the dogs or their special value; it did not stipulate that the special value could be chosen only if no market value could be shown. The supreme court’s observation that “there is no evidence in this case that the dogs had a market value,” does not constitute a requirement that the dog owners prove that the dogs lacked a market value. Heiligmann is the only supreme court case that Redmon cited, and Redmon extended it to include this additional hurdle for the plaintiffs.

As noted, Bueckner argues that the market value is zero. He contends in his appellate brief:

The pets/strays [**21] were really worth little or nothing by any measure . . . .

The truth is that these stray adult dogs (totally free and unrestrained at all times . . . ) were not even worth the prices in the [newspaper] advertisements, introduced by both sides . . . since even AKC championship line puppies which grow up running loose, not trained and penned, become worth only what they can bring as pets: $ 10.00 or nothing.

The evidence in the record is wholly lacking and insufficient to support civil damages in any amount . . . .

(Emphasis added.)

If we were to agree with Bueckner that the market value of Freckles and Muffin was zero, this would leave their intrinsic value as the only basis for affirming the award. The record does not contain the trial court’s calculations for determining the damages. Yet Bueckner insists that the trial court awarded the $ 1450 actual damages as market value. While this may have been the case, the record does not reveal this. n4 I would hold that [*376] the judgment should be affirmed if the finding of $ 1825 in actual damages is supported by either the evidence of the market or pecuniary value of Freckles and Muffin or [**22] the evidence of the intrinsic or special value of Freckles and Muffin.

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n4 Bueckner has incorporated into his brief his own handwritten notes, which allegedly represent the trial court’s verbal explanation of the damage calculations, obtained by a long-distance phone call. He admits that these notations are not a part of the record. Hence, they may not be considered. Mitchison v. Houston I.S.D., 803 S.W.2d 769, 771 (Tex. App.–Houston [14th Dist.] 1991, writ denied).

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -The analysis cannot end here, however. The supreme court more recently dealt with the issue of market value and special value in Porras v. Craig, 675 S.W.2d 503 (Tex. 1984), a case dealing not with domestic pets but with real property. Defendant Porras cleared many large trees off of two acres of land belonging to plaintiff Craig. Craig testified that the value of his land had dropped by $ 20,000 as a result of this clearing, but he failed to testify about the “market” value. Instead, he testified about what the land meant to him and his [**23] wife in personal terms. n5 The jury in Porras found that the loss in value had been $ 7,000, under a jury instruction on “market value” and not on personal value. 665 S.W.2d 167, 168 (Tex. App.–Waco 1983); 675 S.W.2d at 504.

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n5 In his dissent, Justice Wallace (joined by Justice Kilgarlin) contended that the majority had mischaracterized Craig’s testimony. He asserted that Craig’s testimony addressed both market value — despite failure to include “the magic word ‘market’” — and the basis for the exemplary damages. He would have affirmed the judgment on the evidence of market value. Porras, 675 S.W.2d at 506-07.

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -The court of appeals affirmed the judgment on the verdict, and the supreme court reversed, holding that Craig’s testimony constituted no evidence of diminution in market value. The supreme court held that where there was no evidence of loss in market value of Craig’s land, the court could base the award on the intrinsic value of the trees that were destroyed. 675 S.W.2d at 506. Personal or [**24] intrinsic value had not been an option for that jury, however, so the judgment could not stand on the evidence adduced. The supreme court recognized that Craig had been injured by the destruction of his trees, even though the clearing might actually have increased the market value of his land. Id. In the interest of justice, the court reversed and remanded for a new trial to determine the intrinsic value of the destroyed trees or to develop the evidence of market value. Id.

The present case was tried before the court rather than a jury, and the trial court issued findings of fact. These findings did not specify that the actual damages awarded were for market value rather than for intrinsic value or personal value. The market value finding in Porras did not correspond to the testimony of personal or intrinsic value. Id. Hence, remand was appropriate. In the present case, remand is unnecessary, because the findings were not limited to market value. n6

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n6 Yet even in Porras, where the supreme court held that the finding of market value could not rest upon evidence that was limited to special or intrinsic value, the supreme court still did not articulate the Redmon rule that plaintiffs could not recover special value without proving the absence of market value. The court discussed the rule as follows:

Because the record shows evidence that might have allowed Craig to recover under a different theory, in the interest of justice we remand the cause for a new trial. If, on retrial, Craig can show that the market value of his land was reduced, he can recover under that theory; if not, he can attempt to prove damages by the intrinsic value measure.

675 S.W.2d at 506 (citations omitted).

This statement of the rule would have allowed Craig to recover the intrinsic value of his lost trees if he could not show a reduction in the market value of his land. This is not as strict as the Redmon rule’s requirement that plaintiffs affirmatively show no loss in market value.

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As I have observed above, Porras did not involve domestic pets, but real property. Real property, although highly prized, does not have characteristics that can make it a widely recogized member of the family. It is common knowledge among petowners that the death of a beloved dog or cat (or other domestic animal) can be a great loss. This is true even if that loss is the result of a prolonged illness or of an automobile accident rather than an intentional shooting as in the present case.

The majority cites Arrington v. Arrington, 613 S.W.2d 565, 569 (Tex. Civ. App.–Fort Worth 1981, no writ), for the proposition that animals are treated as property in the eyes [*377] of the law. I agree that this is an established principle of law. But animals are not merely property. Arrington was a divorce case. Among many other items of “property” to be divided, it involved the question of which spouse would be the “managing conservator” of their pet dog, Bonnie Lou. The court decided that issue on the grounds that Bonnie Lou was the property of Mrs. Arrington. But the court spoke in terms that show how our society loves and appreciates dogs as domestic pets, or [**26] even as family members:

Bonnie Lou is a very fortunate little dog with two humans to shower upon her attentions and genuine love frequently not received by human children from their divorced parents. All too often children of broken homes are used by their parents to vent spite on each other or they use them as human ropes in a post divorce tug-of-war. In trying to hurt each other they often wreak immeasurable damage on the innocent pawns they profess to love. Dogs involved in divorce cases are luckier than children in divorce cases–they do not have to be treated as humans. The office of “managing conservator” was created for the benefit of human children, not canine.

A dog, for all its admirable and unique qualities, is not a human being and is not treated in the law as such. A dog is personal property, ownership of which is recognized under the law. There was testimony that Bonnie Lou was given to Mrs. Arrington over ten years ago.

Mr. Arrington agreed to Mrs. Arrington’s custody of the dog if he could have reasonable visitation. He does not complain of lack of visitation; only that he was not appointed managing conservator. We overrule point of error no. 7 with the [**27] hope that both Arringtons will continue to enjoy the companionship of Bonnie Lou for years to come within the guidelines set by the trial court. We are sure there is enough love in that little canine heart to “go around.” Love is not a commodity that can be bought and sold–or decreed. It should be shared and not argued about.

Id. (emphasis added; citations omitted).

This language is strikingly different from that used in disposing of inanimate property. This could only have been because animals are so different from other types of property. The Arringtons contended for the companionship of Bonnie Lou. While their conflict was easy to resolve under simple property concepts, simple property concepts cannot reflect the complex reality of the relationships between humans and their pets. Because of the characteristics of animals in general and of domestic pets in particular, I consider them to belong to a unique category of “property” that neither statutory law nor caselaw has yet recognized.

Many people who love and admire dogs as family members do so because of the traits that dogs often embody. These represent some of the best of human traits, including loyalty, [**28] trust, courage, playfulness, and love. This cannot be said of inanimate property. At the same time, dogs typically lack the worst human traits, including avarice, apathy, pettiness, and hatred.

Scientific research has provided a wealth of understanding to us that we cannot rightly ignore. We now know that mammals share with us a great many emotive and cognitive characteristics, and that the higher primates are very similar to humans neurologically and genetically. n7 It is not simplistic, ill-informed sentiment that has led our society to observe with compassion the occasionally televised plights of stranded whales and dolphins. It is, on the contrary, a recognition of a kinship that reaches across species boundaries.

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n7 Federal statutory law requires animal laboratory facilities to provide “a physical environment adequate to promote the psychological well-being of primates.” Improved Standards for Laboratory Animals Act of 1985, 7 U.S.C., 2143 (1989) (emphasis added), amending the Animal Welfare Act of 1966, 7 U.S.C., 2131-2154 (1989). Federal regulations require such facilities to provide for the “psychological enrichment of non-human primates . . . .” Animal Legal Defense Fund v. Secretary of Agriculture, 813 F. Supp. 882, 889 (D.D.C. 1993) (citing 54 Fed. Reg. 10837, 10944 (1989)) (emphasis added).

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The law must be informed by evolving knowledge and attitudes. Otherwise, it risks becoming irrelevant as a means of resolving conflicts. Society has long since moved beyond [*378] the untenable Cartesian view that animals are unfeeling automatons and, hence, mere property. The law should reflect society’s recognition that animals are sentient and emotive beings that are capable of providing companionship to the humans with whom they live. In doing so, courts should not hesitate to acknowledge that a great number of people in this country today treat their pets as family members. Indeed, for many people, pets are the only family members they have.

Losing a beloved pet is not the same as losing an inanimate object, however cherished it may be. Even an heirloom of great sentimental value, if lost, does not constitute a loss comparable to that of a living being. This distinction applies even though the deceased living being is a nonhuman.

Bueckner contends that under existing Texas case law, if an animal has a market value, then that market value alone constitutes the proper measure of damages for the killing of the animal. No Texas Supreme Court case cited [**30] by either party, nor any that I have found, has held precisely on this point. I would disagree with Redmon and with any other appellate cases that are restrictive on this issue and hold that Hamel and Collins could recover either the market value or the special or intrinsic value of their beloved pets. Accordingly, I would affirm if the finding of $ 1825 in actual damages is supported by either the evidence of the market or pecuniary value of Freckles and Muffin or the evidence of the intrinsic or special value of Freckles and Muffin. n8

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n8 And in this case, we need not determine whether the testimony of special value is sufficient to support the finding of $ 1825 actual damages, because Bueckner has not assigned a point of error to that finding.

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -As stated above, I concur in the analysis and disposition of the majority opinion. I hasten to add, however, that testimony that an animal is a beloved companion should generally be considered sufficient to justify a finding of damages well [**31] beyond the market value of the animal and its yet-unborn progeny.Andell

Eric Andell

Justice

Justices Duggan and Hedges also sitting.

Judgment rendered and opinion delivered August 25, 1994.

Kay Corso, Plaintiff, v. Crawford Dog and Cat Hospital, Inc., Defendant

[NO NUMBER IN ORIGINAL]

Civil Court of the City of New York, Queens County

97 Misc. 2d 530; 415 N.Y.S.2d 182; 1979 N.Y. Misc. LEXIS 1988

March 22, 1979

HEADNOTES: [***1]
Animals — Wrongful Destruction of Dog

A pet, such as a dog, is not just a thing but occupies a special place somewhere in between a person and a piece of personal property; accordingly, the defendant commits an actionable tort entitling plaintiff to damages beyond the market value of the dog where plaintiff suffered mental anguish and despondency due to the defendant’s wrongful destruction of the remains of her dog for whom she had planned an elaborate funeral.

COUNSEL: John P. O’Neill for plaintiff.

Irving Miness and Michael Hirsch for defendant.

JUDGES: Seymour Friedman, J.

OPINIONBY: FRIEDMAN

OPINION: [*530] OPINION OF THE COURT

[**182] The facts in this case are not in dispute.

On or about January 28, 1978, the plaintiff brought her 15-year-old poodle into the defendant’s premises for treatment. After examining the dog, the defendant recommended euthenasia and shortly thereafter [**183] the dog was put to death. The plaintiff and the defendant agreed that the dog’s body would be turned over to Bide-A-Wee, an organization that would arrange a funeral for the dog. The plaintiff alleged that the defendant wrongfully disposed of her dog, failed to turn [***2] over the remains of the dog to the plaintiff for the funeral. The plaintiff had arranged for an elaborate funeral for the dog including a head stone, an epitaph, and attendance by plaintiff’s two sisters and a friend. A casket was delivered to the [*531] funeral which, upon opening the casket, instead of the dog’s body, the plaintiff found the body of a dead cat. The plaintiff described during the nonjury trial, her mental distress and anguish, in detail, and indicated that she still feels distress and anguish. The plaintiff sustained no special damages.

The question before the court now is twofold. (1) Is it an actionable tort that was committed? (2) If there is an actionable tort is the plaintiff entitled to damages beyond the market value of the dog?

Before answering these questions the court must first decide whether a pet such as a dog is only an item of personal property as prior cases have held ( Smith v Palace Transp. Co., 142 Misc 93). This court now overrules prior precedent and holds that a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property.

As in the case where a human body is withheld [***3] ( Zaslowsky v Nassau County Public Gen. Hosp., 27 Misc 2d 379; Diebler v American Radiator & Std. Sanitary Corp., 196 Misc 618), the wrongfully withholding or, as here, the destruction of the dog’s body gives rise to an actionable tort.

In ruling that a pet such as a dog is not just a thing I believe the plaintiff is entitled to damages beyond the market value of the dog. A pet is not an inanimate thing that just receives affection; it also returns it. I find that plaintiff Ms. Corso did suffer shock, mental anguish and despondency due to the wrongful destruction and loss of the dog’s body.

She had an elaborate funeral scheduled and planned to visit the grave in the years to come. She was deprived of this right.

This decision is not to be construed to include an award for the loss of a family heirloom which would also cause great mental anguish. An heirloom while it might be the source of good feelings is merely an inanimate object and is not capable of returning love and affection. It does not respond to human stimulation; it has no brain capable of displaying emotion which in turn causes a human response. Losing the right to memoralize a pet rock, or a pet tree or [***4] losing a family picture album is not actionable. But a dog — that is something else. To say it is a piece of personal property and no more is a repudiation of our humaneness. This I cannot accept.

Accordingly, the court finds the sum of $ 700 to be reasonable compensation for the loss suffered by the plaintiff.