Bueckner v. Hamel , 886 S.W.2d 368 ( 1994 )

OPINION

HEDGES, Justice.

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 ap-pellees’ dogs.¹ We affirm.

Fact Summaiy

On November 8, 1989, Bueckner shot two dogs, a dalmatian and an Australian shepherd, belonging to appellees. He was in a deer stand when 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 $375 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 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 Plaintiffs 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). As owners of the dogs, appel-lees 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 refd 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; (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 plaintiffs 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 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 hoaty, 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 plaintiffs 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, 16 S.W. 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 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 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 King’s Estate, 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 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 appel-lees. 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 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 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 $375 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 filed criminal charges against Bueckner for cruelty to animals. The trial court ordered that he pay $375 in restitution 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.

ANDELL, J., concurring.

1 . 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.