The Finest Friend to Man and Lawyer Alike
In my research for this case (which I expect to take to trial sometime this year), I came across this footnote in Miller v. Clark County, 340 F. 3d 959 (9th Cir. 2003). In addition to being one of the longest footnotes in modern jurisprudential history, and despite coming from a very pro-law-enforcement perspective, the opinion does a nice job of summarizing various opinions extolling the virtues of our little four-legged friends. Check it out:
The words of some of our predecessor judges bear repeating here, and there is no better place to start than with the Maine Supreme Court’s 1884 Maine v. Harriman decision, which lauded the noble hound:
He is the friend and companion of his master—accompanying him in his walks, his servant aiding him in his hunting, The playmate of his children—an inmate of his house, protecting it against all assailants.
75 Me. 562, 566, 1884 WL 2912 (1884).
Perhaps feeling that the Maine Supreme Court’s words, though eloquent, did not do the dog justice, the justices of the South Carolina Supreme Court in 1899 paid tribute
to the noble Newfoundland, that braves the water to rescue the drowning child; to the Esquimaux dog, the burden bearer of the arctic regions; the sheep dog, that guards the shepherd’s flocks and makes sheep raising possible in some countries; to the St. Bernard dog, trained to rescue travelers lost or buried in the snows of the Alps; to the swift and docile greyhound; to the package carrying spaniel; to the sagacious setters and pointers, through whose eager aid our tables are supplied with the game of the season; to the fleet fox hounds, whose music when opening on the fleeing fox is sweet to many ears; to the faithful watch dog, whose honest bark, as Byron says, bays “deep-mouthed welcome as we draw near home;” to the rat-exterminating terrier; to the wakeful fice, which the burglar dreads more than he does the sleeping master; to even the pug, whose very ugliness inspires the adoration of the mistress; to the brag possum and coon dog, for which the owner will fight if imposed upon; and lastly, to the pet dog, the playmate of the American boy, to say nothing of the “yaller dog,” that defies legislatures.
Of all animals the dog is most domestic. Its intelligence, docility and devotion make it the servant, the companion and the faithful friend of man.
State v. Langford, 55 S.C. 322, 33 S.E. 370, 371 (1899).
The California Court of Appeals weighed in in 1919, noting that “[f]rom the building of the pyramids to the present day, from the frozen poles to the torrid zone, wherever man has wandered there has been his dog.” Roos v. Loeser, 41 Cal.App. 782, 784, 183 P. 204 (1919). Soon thereafter, the Georgia Supreme Court made its contribution to the judicial literature about the dog:
In metal and in stone [the dog's] noble image has been perpetuated, but the dog’s chief monument is in the heart of his friend, “man.” As a house pet, a watchdog, a herder of sheep and cattle, in the field of sport, and as the motive power of transportation, especially in the ice fields of the far north as well as in the Antarctics, the dog has ever been a faithful companion and helper of man.
Montgomery, 169 Ga. at 748, 151 S.E. 363.
The United States Court of Claims judges’ 1950 paean to the dog is personal and heartfelt:
In our youth we always had dogs, mostly of the mongrel variety, but nevertheless dogs. We placed them just behind people, and when on rare occasions we fell out with any of our playmates, our hounds usually forged ahead.
We have very little respect and no affection for anyone who has not at some time in his life loved a dog. Throughout history the dog has been known for his loyalty and faithfulness. He has been celebrated in song and story. Even books have been written about the dog, his character, intelligence and attributes. The dog has been able to awaken affection in the hearts of every race of people. Wherever man has gone, on the frontier, in the great woods, in the frozen north, the faithful dog has been his constant companion, sharing his hardships and his poverty. When in trouble, humanity finds consolation in his company.
Alcibiades had a handsome dog.
Senator Vest described the dog as “man’s best friend.”
We meet him first in Homer’s verse:
“The dog by the Aegean seas.”
Scott referred to him as the “companion of our pleasures and our toils,” and Mark Twain said the difference between a dog and a man is that “if you pick up a starving dog and make him prosperous, he will not bite you.”
It was a dog that licked the wounds of Lazarus in his rags. Rin Tin Tin was a movie star. Neither poverty nor riches, success nor failure, affects his loyalty. It was the dog that served as a test for the army of Gideon. He also performed heroic services in the
most modern and greatest of all wars. The poet said that high in the courts of Heaven the one sure welcome that awaited was a little dog angel that “sits alone at the gates,” and would not play with the others until his master arrived.
Pedersen v. United States, 115 Ct.Cl. 335, 338 (1950).
Our judicial predecessors’ eloquent praise of the dog is matched in the annals of law by attorney (and, later, senator) George Graham Vest’s famous closing argument to a jury in an 1872 case involving the illegal shooting of a fabulous hunting dog named “Old Drum.” The argument, once memorized by American schoolchildren (a tradition worthy of revival), is known as “Vest’s Eulogy to the Dog”:
Gentlemen of the Jury: The best friend a man has in this world may turn against him and become his enemy. His son or daughter that he has reared with loving care may prove ungrateful. Those who are nearest and dearest to us, those whom we trust with our happiness and our good name, may become traitors to their faith. The money that a man has he may lose. It flies away from him, perhaps when he needs it most. A man’s reputation may be sacrificed in a moment of ill-considered action.
The people who are prone to fall on their knees to do us honor when success is with us may be the first to throw the stone of malice when failure settles its cloud upon our heads. The one absolutely unselfish friend that a man can have in this selfish world, the one that never deserts him, the one that never proves ungrateful or treacherous, is his dog. Gentlemen of the jury, a man’s dog stands by him in prosperity and in poverty, in health and in sickness. He will sleep on the cold ground, where the wintry winds blow and the snow drives fierce, if only he may be near his master’s side. He will kiss the hand that has no food to offer; he will lick the wounds and sores that come in encounter with the roughness of the world. He guards the sleep of his pauper master as if he were a prince. When all other friends desert he remains. When all riches take wings and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens. If fortune drives the master forth an outcast in the world, friendless and homeless, the faithful dog asks no higher privilege than that of accompanying to guard against danger, to fight against his enemies, and when the last scene of all comes, and death takes the master in his embrace and his body is laid away in the cold ground, no matter if all other friends pursue their way, there by his graveside will the noble dog be found, his head between his paws, his eyes sad but open in alert watchfulness, faithful and true even in death.
1943-44 Official Manual, State of Missouri 1129.
Truly, we have no finer friend than the dog.
This is the kind of flowery opinion that make me love what I do, even if the overall result is to condone a cop’s use of a dog as a weapon following a failed traffic stop. But it begs the question: when will plaintiffs be able to fully recover for the loss of a canine companion? Above we see more than 100 years of the nation’s best and brightest jurists putting the dog on a pedestal; a higher one than most humans deserve, to be sure. Yet in most jurisdictions, there is no such thing as a separate tort for malicious injury to a pet, nor is loss of consortium available to a pet owner whose dog or cat has been intentionally killed. You might be able to maintain an action for intentional infliction of emotional distress, but those hardly ever fly even in the worst of circumstances (see this infamous Kentucky case). In many places, you can only recover the fair market value of the dog. The death of a mutt, for example, might bring you $100, depending on the dog’s age, and its depreciation in value over time, etc. A Springer Spaniel might get you slightly more. Put simply, pets are basically treated like furniture or dishes, that kind of thing. It is mostly the fault of the legislature, but the judiciary is partly responsible. The failure by the courts to extend more relief to plaintiffs under gruesome facts involving family pets that I can’t even bear to think about or reproduce here…well, in light of the kind of language quoted above, it creates kind of a head-scratcher.
It is a widely-accepted truth that the wheels of legal progress turn slowly, too slowly to keep pace with the rest of society. But they do turn. After all, children were treated no better than inanimate objects until relatively recently in the United States. Lawyers, lawmakers, and judges, along with regular folks, must forge ahead and evolve. And compassion for the most helpless of creatures is a vital component of evolution. But don’t take my word for it.
For much more (and much better) analysis of this stuff, I highly recommend Amy Breyer’s excellent Animal Law Blog.
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