• The Economic Value of Companion Animals: A Legal and Anthropological Argument For Special Valuation
  • December 26, 2011
  • Law Firm: Geordie Duckler P.C. - Tigard Office
  • The special nature of companion animals can be assigned a monetary worth in the form of the animal’s “special value” to the owner distinct from a market value. A legal analysis of the remedy of wrongful death, a sociological analysis of our comparable treatment of infants, and an anthropological analysis of the role of domesticated animals all contribute toward constructing criteria for that valuation.

    I.          INTRODUCTION

    Animals are personal properties, and, as personal properties, have value.[1] Many animals have a very well defined value, called “market value”; because we eat cows, for example, the cost of a cow is whatever the free market will bear. Interesting legal questions rarely arise with queries as to the cost of cows. Because we do not eat dogs but instead keep them as companions, on the other hand, the cost of a dog is much more difficult to determine; we tend to treat the cost of our meals and the cost of our friends very differently. Interesting legal questions arise frequently with queries as to the cost of friendship.

    Concealed within an assessment of a dog’s cost lay several complex legal puzzles. One asks just how the value of an animal companion is to be measured or calculated distinct from the value of an animal as a market good. Another asks whether every different type of animal must therefore have a different value. This article attempts to confront at least those two puzzles in particular. It specifically addresses the modern challenge in American law to determine the special economic value of those animals which we do not eat but with which we tend to surround ourselves in public and private, that is, the animals specifically found in our zoos and in our homes.

    It is not necessary to make such an economic appraisal in the form of a polemic for or against maintaining pets or zoological parks, or as an argument for or against establishing animals’ rights, whatever those might be. Rather, the statement about personal properties, and the questions arising out of that statement, may be explored simply in reflection on how two disparate areas of human knowledge, law and biology, often and inescapably intersect. It is in appreciating the concept of special animal value in general where that intersection directly affects us economically as animal owners.[2]

    In the article, I specifically argue for a need to assign monetary worth to commonly held animals in order for the law to be logically and legally consistent in the way we have historically interacted with such objects as our special personal properties. To make that argument, I consider two groups - zoo animals and companion animals - whose members’ particular financial worth to people has been misapprehended under the law.

    In Part II, I describe animals in general and present captured animals as a model, examining why they have always been generally deemed “valuable” but have rarely been “valued”. In addition, I argue for imparting worth to them more as we have done with our infants than as we have done with our prisoners. In Part III, I explore the modern movement to try to elevate two domesticated species, dogs and cats, outside of the realm of properties altogether, and assert that financial value as an element of economic damage can and should nevertheless be assigned to those species no differently than we have already assigned it to ourselves in certain respects. I also relate the doctrine of wrongful death as a route to applying the concept of  “special value”. Overall, I attempt to coalesce a legal assessment with a scientific assessment of companion animal value.

    II.        ANIMALS AS SOCIALLY VALUABLE OBJECTS

     “The origin of menageries dates from the most remote antiquity. Their existence may be traced even in the obscure traditions of the fabulous ages, when the contests of the barbarian leader with his fellow-men were relieved by exploits in the chase scarcely less adventurous, and when the monster-queller was held in equal estimation with the warrior-chief. The spoils of the chase were treasured up in common with the trophies of the fight; and the captive brute occupied his station by the side of the vanquished hero. It was soon discovered that the den and the dungeon were not the only places this link of connection might be advantageously preserved, and the strength and ferocity of the forest beast were found to be available as useful auxiliaries...”[3]

    How are we different from the animals that we own? Modern taxonomy categorizes all living forms into five major domains (representing what previously had been termed kingdoms). The domain or kingdom Animalia is composed of those living things that move independently, respond relatively quickly to external stimuli, possess compact internal organs, and have separate genders[4]. Within that immense group a multitude of hierarchies is possible depending on the parameters an observer may be interested in examining at any given moment. Body size, anatomical complexity, biomass, diet, longevity, phyletic history, and utility, among other criteria, have all been utilized to place a wide variety of different members of Animalia at different locations along a vast number of human-constructed animal spectra.[5]

    Described using their common names, then, some animal “groupings” overlap while others make any intersection impossible[6]. Mice, mosquitoes, albatross, angelfish and chimpanzees are all in Animalia and may, if necessary, be compared in terms of raw physical dimensions (e.g., surface area to volume ratio), but could not be constructively compared in terms of their differing social behaviors. The smallest animal and the least complex animal are hardly the same creature, and perhaps couldn’t be, given a firm understanding of morphology and evolution.[7] Much has been written about comparisons of animals by their diet and habitat,[8] much has been ignored about how often those factors change from moment to moment depending upon changes in environmental conditions. Animal behavior yields to the dynamism of the earth’s environments, as much as humans may pretend that behaviors are permanently fixed species to species.

    We are in the kingdom Animalia too, of course, and take differing positions on each part of the spectra with the other members, with our placement depending entirely on the criteria at issue. Is locomotory speed to be measured? Humans occupy an undistinguished spot in the crowded middle. Is communication by complex vocalization of interest? Humans outdistance any other animal on the chart. Is the indicator perhaps mucus secretion, species diversity, or olfactory sensitivity and reception? On those scales, humans hardly register at all. Where the scale specifically has to do with an ability to manipulate the physical and biological environment, humans occupy the high end (somewhat above beavers and termites), and all captive animals are kept captive by virtue of their subordinate position on this scale alone. We have tamed and kept animals in captivity for thousands of years for a variety of bewildering sensible and nonsensical sociopolitical reasons, but primarily do so because we can.

    It was not always this way. In human prehistory, natural objects were those things originally held in common, components of a "negative community" which belonged to no one and yet were open to all. The formal concept of "property" slowly arose as a result of humans formulating social rules about coveting, obtaining and occupying pieces of the world.[9] The concept expressed the recognition of a "natural" right of the individual to use things for his or her own private purposes.[10] As attainment and occupation rights became enforced socially, laws developed that discriminated between different types of ownership and occupation rights, and between different types of owners and occupiers.[11] Along with the concept of items being fixed or detachable from the land, real and personal properties were thereby distinguished.

    As to detachable objects in particular, certainly human history and prehistory is in large part a record of people learning how to transform natural objects into artificial ones, the history of manufacture and production of materials.[12] Humans nevertheless impute the privileges of ownership to non-manufactured objects as well, most notably to land itself and the plants and animals embroidering it. Property laws early on thus had to distinguish between two broad categories of personal property ownership, that of animate from that of inanimate objects. As items of economic exchange, living things have odd attributes that inanimate objects do not - the two most valuable among them being the ability to form intent and subsequently manifest it independently by motion and action, and the ability to replicate.[13] The laws regulating agriculture, animal domestication and animal husbandry owe much of their genesis to the capacity of plants and animals to independently transport themselves over large distances and to compound their value over time.[14]

    The notion that usefulness and increased value has fueled our practices of capturing and exploiting animals is a historical fact. It is of interest predominantly to the recorders of social history. The notion that such utility and worth marks different animals with the imprimatur of different stamps of ownership under our laws, on the other hand, is a matter of jurisprudence, of interest to those who litigate and adjudge the social value of certain types of ownership.

    Any program that would require people to refrain entirely from owning or exploiting animals as personal properties would be doomed to failure, and a moratorium on ownership has about the same chances of success as the attempted prohibition of alcohol had in our country’s past and for some of the same reasons. A large-scale view of human behavior in light of the evolution of past behaviors suggests that legislation which tries to absolutely restrain people from using certain objects found in nature only raises the actual value of violating those restraints over the long run. Any law compelling humans to not treat animals as objects or properties at all is a law that, if it could be enacted at all, would create many, many more problems for both humans and animals than either may languish under at present.

    Animals are personal properties, and, as personal properties, have value. As items of material value go, all animals have a particular value generally similar to manufactured commercial objects, but, whether foodstuff or pet, are fundamentally distinct from manufactured commercial objects in that value at least three ways.

    Animals, as individual objects, are relatively unique. First, animals, by their nature, are inherently unique and irreplaceable objects in the natural world. Concepts of modern genetics command the recognition that every individual sexually-reproducing animal is a distinct fingerprint of nature, each unlike that of any other, each having never arisen before or likely ever to be repeated again in nature’s pattern. It is calculated that just as to our own species, the number of potentially genetically different individuals exceeds a decadillion (that is, one with 30 zeros after it).[15] The awesome power of genetic variation to construct a singular and unique object in the universe cannot be applied to non-living commercial properties, even hand-crafted ones. Any artificially manufactured object can be directly and exactly replaced given enough time, money, and interest in doing so. This is not so with the vast majority of living objects.

    The contrast between the fundamental composition of animals and of other personal properties is a critical one, given that nested deep within each animal, be it mite or moose, rests an organic trademark for that creature constructed of an astonishingly complex chains of nucleic acids and describing (in the language of molecular compounds) an astonishingly specific natural object[16]. Cow or dog, should the article of trade with which one is bargaining happen to be a living creature, the trader is compelled to operate under the fact that it is the only one of such kind in the entire world which has been or ever will be. Although it is routinely ignored, the condition of inherent irreplaceability is quite appropriately incorporated into the value of all animals as material objects.

                Animals, as a legally recognized group, are relatively unusual. Second, most animals are much more noticeable and novel commercial items than are the majority of objects placed into the stream of commerce or woven into our social fabric. As with works of art, market transactions involving larger animals, captives, and companion animals are more pointedly vulnerable to public scrutiny, and under such scrutiny often become cloaked with a notoriety not accompanying non-living goods.[17] That those transactions engage the emotions and strident opinions of the communities of buyers and sellers in which they occur, is a fact that suggests once more that the items involved in the exchanges must be special properties worthy of more sensitive treatment than that given standard trade goods.

                Animals impact human communities relatively seriously. Third and finally, most animals, as distinct from inanimate objects in general, form an integral part of the ecological and psychological health of every community in which they reside and propagate. Because overall biological and cultural diversity is increased by the presence, and damaged by the absence, of captive and companion animals, oscillations in our public health transcend the self-interest of just the owners, buyers, and sellers in the marketplace.[18] In other words, more interests than purely economic ones are at stake in the ownership of animals as personal properties because of what animals are. Those laws regulating animals as our properties encroach slowly and surely on the protection and enforcement of our nation’s environmental health.

    With those three bases for an assignment of special value in mind, it can be argued that certain animals are simply not market goods at all and never have been. When we discuss the social and legal value of those animals we maintain as our associates in public and private, we do so shadowed by our own prehistorical and historical past. Dogs were domesticated roughly 15,000 BCE.[19] The earliest record of cats being domesticated is 4000 BCE.[20]  At that time, Egyptian royalty kept certain animals confined near temples of worship and in the royal court to signify religious commitment and devotion.[21] By about 2000 BCE, royalty of Sumer, Babylonia and Assyria were confining exotics as a symbolic enhancement of their political power as well, representing the ability to dominate subservient entities both in the human community as well as the wild.[22]

    The primary motivation for the accumulations in ancient animal collections was for political power and individual enjoyment, although ostensibly public entertainment and education purposes were collaterally served as well.[23] In the common era, from the menageries and deerparks of medieval England and China of the 1200s to the pet stores of today, innumerable species owe their copiousness to the aesthetic pleasure humans have derived from keeping them either tamed or in captivity. Their market value has little or nothing to do with their maintenance as properties and everything to do with the way we have viewed and treated ourselves as social creatures. That effect is not true with respect to most market goods.

     “I desired, above all things, to give the animals the maximum of liberty. I wished to exhibit them not as captives, confined to narrow spaces, and looked at between bars, but as free to wander from place to place within as large limits as possible, and with no bars to obstruct the view and serve as a reminder of captivity.” [24]

    Nor are zoo or home animals maintained as a result of some lack of market value, as if they were a social and economic burden on society such as with prisoners. The image of the zoo animal as a prisoner continues to arise in the literature.[25] Comparing zoo animals to prisoners is a common pastime among social scientists and animal rights authors, due to the numerous superficial similarities between the two groups.[26] Zoo animals regularly find themselves in prison-like conditions, surrounded by people who appear to act much like wardens, guards and visitors. Bars and security measures are prevalent and much effort is expended to prevent escape and harm to those on the outside. There is a general feeling inside most zoos that the visitor stands on the margin of a minimum security environment, looking in at the daily life of a prison community whose wardens are concerned about the welfare (or at least the psychological welfare) of the visitors above the inmates.

    While the similarities between zoo animals and prisoners may therefore seem realistic, the comparison is poor in a legal sense. If we examine the basis for the rights that real prisoners themselves have and inquire if zoo animals are truly comparable in ways that the law holds to be fundamental to prisoners, we find that zoo animals are not prisoners at all. They were not incarcerated in order to be explicitly punished, to be rehabilitated, or as a deterrent to others seeking to engage in similar conduct, nor are they promised under some social contract to be eventually released when a certain condition, such as a specified period of time, has passed. Zoo animals are confined under conceptually different guidelines than are prisoners, in large part due to the absence of any social obligations to conduct themselves in a particular manner to either avoid or complete the incarceration imposed. In other words, humans reside in prisons on exclusively on account of behaviors and in spite of their biological status; animals reside in zoos in spite of behaviors and on account of their biological status. The contrast is fundamental.

    Prisoners are kept in prisons on moral grounds even if the legal terms slightly vary in their moral presumptions from jurisdiction to jurisdiction. Animals in zoos and homes, to the contrary, are not kept in captivity under any moral presumption whatsoever (certainly not explicit, documented ones), and are placed and stay in captivity without any contractual or social relationship to refer to that might justify either their removal from the wild or their reintroduction back into it.

    In fact, both zoo and home animals are instead much more on par with infants when it comes to treatment and evaluation. The equivalence is obviously not in terms of animals having the behavior or appearance of infants, but in terms of the status in which the law perceives both. In a very real economic and social sense, infants are properties, the properties of their parents, with the severe caveat that numerous ways of disposing and conveying them are legally and morally prohibited. In basic terms, a zoo animal or a companion animal may be modeled under the law in the same manner and by the same rules as affect a child in a daycare facility.

    Consider that infant children are placed in and stay in daycare facilities, for instance, regardless of (and sometimes in absolute antagonism to) any social obligation to conduct themselves in a particular fashion. Children in daycare may not be relieved of the restraint simply because they comport themselves differently over time, or because time passes (other than that they eventually get too old to be in the day care). They are not in any sense prisoners, and they are “confined” on account of their biological status and in spite of their behaviors, like animals. As with animals in zoos and homes, children in daycare are there because a responsible person has recognized it beneficial to other people to place them there, sometimes even if it is not entirely beneficial to the child. As with animals in zoos and homes, children in daycare have their daily needs met with or without their assistance or even knowledge. The stay is indefinite, regimented, and primarily for ulterior purposes. The adult human is the guardian and caretaker of the child, as owners and keepers are with their captive animals.

    We do use, with infants, bars (of a sort), and security devices, and escape prevention measures, all to a lesser degree than with prisoners, but our attitudes towards why we do so is entirely reversed from the penal model - it is fiduciary, not adversarial. Neither zoo animals, companion animals, nor children in daycare can effectively communicate with anything near the sophistication and understanding of human adults, thereby making it impractical for each to personally assert any privileges that might benefit them. The concept of parent and guardian carries with it the concept that one is protecting privileges that another has but cannot themselves comprehend or protect. So it is with zookeepers and zoo residents, and with the dogs and cats in our homes. A daycare model makes special value manifest.[27]

    III.       ANIMALS AS PERSONALLY VALUABLE OBJECTS

    Indeed, what about dogs and cats in particular? Start by considering these numbers: Roughly 1.5 million species of animal have been identified.[28] Of that number, roughly 1.2 million are insects and arthropods.[29] Of the 300,000 species remaining, the vertebrates comprise about 25,000. Of that number, only 4000 or so are mammal species. Of that 4000, it is solely and primarily two, dogs and cats, which historically have formed the most special and intimate relations with us as our social companions.

    There is a scientific reason for this. A standard definition of domestication contains two components, a cultural component in which humans control the breeding of the animal, and a biological component in which an animal becomes different in form as well as behaviorally distinct from its wild ancestor.[30] Because the phenomenon of domestication is an evolutionary strategy mutually beneficial to the survival of both humans and particular animals, only certain animals have become domesticated in spite of the numerous attempts humans have made to domesticate all sorts of varieties of species.[31] Two criteria can be identified that make domestication definitely work as a social exchange, that is, that winnow out just which species find it advantageous to exploit social relationships with humans. One is the existence of a well-defined dominance hierarchy. The second is the presence of a high degree of sociality.[32] Wolves, from which dogs developed, exhibit both criteria. Dogs readily transfer their ranking systems, docilities, and subservience to humans; in addition complex communication and group cooperation are wolf-like traits that have facilitated long-term human/dog interactions.[33]

    While the law recognizes all types of  “pets”,[34] our companion animals are thus a conceptually and biologically distinct category of pet.[35] We own companion animals for intellectually different reasons than we own other animals, even though the general theme of “ownership” nevertheless applies.[36] With all sorts of objects of value that we manipulate, catalog, transform, and utilize, our ownership is assigned economic value at two different moments of its tenure: once by society when the ownership is first created, and once more by the law if and when the ownership is ever impaired by another.[37] The ideal, of course, is that the second valuation is a direct reflection of the first (along with other consequences inherent in damages, such as interest, penalties and the like). In considering companion animals as valuable personal properties, our ownership is assigned value at the second juncture in spite of the fact that no first valuation, the market valuation, may ever occur.[38]

    When companion animals are damaged or destroyed during the course of ownership, the law has attempted to address value, albeit weakly. Apart from abuse and neglect statutes, private legal remedies for the loss of value of our companion animals by the conduct of others have slowly developed that are just now beginning to reflect the special status of companion animals.[39] There are two general routes by which civil redress may be sought for such injury.

    The first is by a lawsuit seeking financial recovery for the animal’s owner. The second is by a lawsuit seeking equitable relief for the animal itself. The two routes are distinct from each other at a fundamental level. In the first, the legal presumption is that animals are the personal properties of humans and thus adopts an anthropological approach[40]; in the second, the legal presumption is that they are not, and thus adopts a philosophical approach.[41] The first route is not affected by and does not consider the rights of animals; the second stakes everything on the existence and scope of such rights. Both endeavor to address insults to animal life and value, but in different ways.

    As lawsuits go, animal rights suits are problematic, to say the least. They must surmount procedural obstacles such as standing; they tend to encounter substantive problems such as the scarcity of precedential caselaw; and they all ultimately face social and political barriers such as the psychological reluctance of judges and juries to accept them or take them seriously. Sensitive to those difficulties, owners often choose the second, more accessible route, of tort remedies.

    Suits for redress would simply not exist were companion animals to truly be valueless commodities. Civilly, owners have frequently sued under torts such as conversion, trespass to chattels, and/or the infliction of emotional distress because such torts exemplify the ability to acknowledge some manner of value.[42] Three different manner of tort illustrate three different manners of recovering that value.

                Conversion. Liability for conversion is based on one person destroying another’s property, and damages focus only on the property itself in terms of its market value and thus the owner’s out-of-pocket economic loss.[43] In some states, plaintiffs are compelled to make a thin choice between proving the animal’s market value or its “intrinsic value”.[44] Intrinsic value means where damaged goods have no market value, then the actual worth to the owner becomes the test.[45] Because actual worth is objective, however, ‘intrinsic value” often translates into minimal or non-existent value depending on the owner’s community and its attitudes toward animals.

                Infliction of emotional distress. In turn, liability for infliction of emotional distress is based on one person hurting another person by way of harming their property, and damages for that tort focus only on the psychological and emotional stress (non-economic damages) suffered by the owner with respect to the loss.[46] The value of the property impaired is inconsequential. The potential to recover non-economic damages for personal properties comprise an entirely separate set of legal issues and is not addressed in this article.[47]

    Loss of companionship. Suits under the previous two types of torts are limited by their foci, and animal owner plaintiffs often recover very restricted awards, if they recover them at all. Often the argument devolves upon whether non-economic damages, that is, emotional distress, is even available under the law. It may little matter, as well, as to what type of animal was harmed or what type of owner impacted. The animal is assumed to simply be a commodity that has been damaged.

    Liability under the tort of loss of companionship, on the other hand, is based on one person hurting or destroying the relationship another had with their companion animal in causing the companion’s death. Damages for the tort focus neither solely on the owner nor solely on the animal, but instead are directed to the affinity and association between the two as having its own independent economic value. It is a tort independent from negligence because it concerns a harm to an entity, a relationship, that is something separate from the person himself or herself.[48]

    Everything that has been adversely affected by a tortfeasor in severing that relation is thus considered in assessing the harm suffered at both ends: initial outlay, upkeep, loss of use, sentiment, the distress of each entity, their longevity and proximity - in short, the very nature and extent of how the animal and its owner acted and lived and worked with each other is given its relative financial importance.[49] Courts across the nation have readily acknowledged that the damage and destruction of companion animals reflects an important aspect of their status as “special” personal properties:

                            “The restriction of the loss of a pet to its intrinsic value in circumstances such as the ones before us is a principle we cannot accept. Without indulging in a discussion of the affinity between ‘sentimental value’ and ‘mental suffering’, we feel that the affection of a master for his dog is a very real thing and that the malicious destruction of the pet provides an element of damage for which the owner should recover, irrespective of the value of the animal because of its special training...”[50]
    again,

                            “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.”[51]
    and again,

                            “As loss of companionship is a long recognized element of damages in this state...the court must consider this an element of the dog’s actual value to this owner...Resisting the temptation to romanticize the virtues of a ‘human’s best friend’, it would be wrong not to acknowledge the companionship and protection that Ms. Brousseau lost with the death of her canine companion of eight years. The difficulty of pecuniarily measuring this loss does not absolve defendant of his obligation to compensate plaintiff for that loss...”[52]
    and again,

                             “Like most pets, [the worth of a mixed breed dog] is not primarily financial but emotional; its value derives from the animal’s relationship with its human companions.”[53]

    How is companionship calculated in terms of money? Translating lives into dollar amounts is a classic political game, time-honored and well-tested. The arguments against engaging in such a game are also time-honored and well-tested: that the practice is immoral, impossible, unrealistic and insufficient.[54] Those arguments notwithstanding, American law is in favor of such a currency conversion. To effect such an exchange requires a number of things, not the least of which is the ability to determine monetary value, a task which in turn requires using a specific valuation method.[55] All people tend to value human life as a general precept. When the law considers the value of human lives, it is frequently compelled to make a translation into current dollars, and thus to use some sort of valuation method.

                Our laws recognize that the premature termination of human life is worth money to those people who had associated with, had a personal history with, the decedent. With respect to companion animal valuation, numerous similarities between our animals and ourselves can be considered in inquiring as to whether companion animal lives are worth money as well. As to similarities in their associations, at least four favorable comparisons may be made that enhance the idea that neither humans nor companion animals are free market commodities:

    1. Both groups exclusively contain members who are alive

    2. The members of both groups can provide useful services to others

    3. The members of both groups can have a valid relationship with others

    4. Others can be psychologically affected by the loss of a member of either group

                On the other hand, the differences as to treatment (again in conducting valuation only) are certainly vast. When human lives are converted into dollars, a quartet of rules seem to have been developed: 1) no single life can ever be scientifically converted into an exact value; 2) there simply is no and never will be a recognized “market” for human life; 3) all lives must be valued differently based upon who is being evaluated; and 4) each life has high value, so that no life, no matter how mean, is considered either cheap or without value altogether.

                With animals, in contrast, each rule seems to be replaced by its opposite: 1) single lives can be very easily converted into exact market values and often are; 2) there is an obvious market for most animal life; 3) particularities have no place and all animals of the same “type” are easily treated as if each individual was identical; and 4) each animal life, apart from the rare instance of a celebrity animal, seems to have low value overall, the bulk being presumably valueless other than as food or apparel commodities.[56]

    The monetary value of human lives has been confronted legislatively, and although there is no exact mathematical formula, certain criteria have been used effectively. The criteria are definitely human-specific, for obtaining value is governed by state statutes that rely specifically on the term “person”.[57] In Oregon, for example, four specific categories of compensation are available for a person’s wrongful death:

    Medical and funeral expenses
    Any disability, pain, suffering or loss of income suffered between the time of the injury and of the death.
    Pecuniary loss to the estate, which is the amount that the decedent would have saved during the remainder of their natural life had they lived.[58]
     
    4. Loss of decedent’s companionship by spouse, children and parents.

    Damages for the mental suffering to the surviving family are not recoverable under Oregon law, although evidence of such suffering goes to proof of lost society and companionship. All the above goes to financial value; as mentioned, the exact valuation method is not mandated nor described but simply left up to the fact-finder.

    As to companion animals, infrequently state statutes have attempted to address the need for a valuation. Washington, for instance, provides that tortfeasors are liable for “the amount of damages sustained and the costs of collection” by virtue of their conduct in killing another’s dog.[59] The highest potential to construct a complex valuation method, however, is via the common law. For over a century, courts have set the path by allowing the owner as the injured party to plead and recover the “special value” of the companion animal that was harmed as opposed to recovering only its “market value”.[60]

    Wrongful death verdicts obtained in trial courts over the time indicate that amounts for people can vary between nothing and in the millions of dollars, depending on numerous factors, including where comparative fault has been assessed against the decedent, thus reducing or eliminating the amounts of the verdict obtained. As to companion animals, a few exemplar verdicts readily indicate how poorly the comparison of value currently stands.[61] If those amounts are ever to change, then the change must reflect what manner of companionship dogs and cats bring and have brought to people as a measure of their economic worth in aspects similar to that humans have brought to each other.

    It seems difficult to know just to what to give significance in determining a concept such as “loss of companionship”, be it animal or human. Guidance exists in the form of wrongful death caselaw ... most directly, from a 1974 federal opinion, In re Farrell Lines, Inc.[62] which itself relied upon a 1966 legal treatise on wrongful death damages setting out eight criteria to be considered in determining both a right to, and an amount of recovery for, the loss of society of one who has been wrongfully killed.[63] The eight criteria have been utilized several times since then[64], most importantly by the United States Supreme Court in Sea-Land Services, Inc. v. Gaudet.[65] The criteria, sometimes referred to as the Gaudet list are:

    1. Relationship of husband and wife, or of parent and child (or similar relationship

        between collateral relatives);

    2. Continuous living together of parties at and prior to time of wrongful death;

    3. Lack of absence of deceased or beneficiary for extended periods of time;

    4. Harmonious marital or family relations;

    5. Common interest in hobbies, scholarship, art, religion, or social activities;

    6. Participation of deceased in family activities;

    7. Disposition and habit of deceased to tender aid, solace and comfort when required; and

    8. Ability and habit of deceased to render advice and assistance in financial matters,

        business activities, and the like.

    Here is a thought experiment. Assume that a close relation has died. First, use the Gaudet list to determine the right to a recovery. In that first sense, the list is being used qualitatively. Therefore, with a decedent in mind, transform each category into a question about the quality of the connection between them and yourself. Without assigning specific points or numerical value, do your best to credit yourself higher for highly applicable answers, and lower for less applicable answers.

    It is probably most appropriate to start this morbid game by applying it to one’s own spouse, child or parent. Under Gaudet would you have a right to compensation for their death? Now, try it again, only this time by applying it to a companion animal. Do you have a right to compensation for his or her death? Trying to fit the eight Gaudet factors to the circumstances of a companion animal is a good balancing test for delineating just what companion animals are to humans. The second, third, fourth, sixth and seventh factors, for instance, give a fairly accurate depiction of just what a dog “does” for a human.[66] The first, fifth, and eighth factors, on the other hand, illustrate real constraints and limitations on how dogs and humans can and ever will manage to interact.[67] In essence, our anthropological heritage may be inserted between the lines of Gaudet, addressing all of our relations, including those between us and other animals, not just the artificially constrained relation of us only among ourselves.

    In a qualitative analysis, there may be difficulty in actually applying the categories objectively. Figuring the amount may therefore help in that regard. Second, then, use the Gaudet list to determine the amount of recovery to be calculated, a sense in which the list is used quantitatively. To do so may likely require the employment of some manner of worksheet that would generate quantities by utilizing algebraic “equations” for each category (with each category adjusted as to relative weight). Once some sort of sum is reached, it is interesting to posit: 1) how realistic the final number is in terms of the personal value of a death, 2) how difficult it is to assess some of the categories numerically at all, 3) what factors, if any, seem to be overlooked category-wise, and, 4) if applying the categories is a good overall proof of what people consider an object’s value to be.

    In rough parallel with Gaudet, McCallister v. Sappingfield, supra, the controlling legal authority on animal death value in Oregon, uses the following very brief methodology to calculate the monetary value of a dead companion animal:

    “The owner of a dog wrongfully killed is not circumscribed in his proof to its market value, for, if it has no market value, he may prove its special value to him by showing its qualities, characteristics and pedigree.”[68]

                Quite different than Gaudet in both scope and emphasis, the McCallister test currently has two competing interpretations. Those interpreters friendly to the companion animal owner consider the phrase “qualities, characteristics and pedigree” to refer respectively to 1) physical attributes (gender, breed, measured dimensions, etc.), 2) psychological attributes (personality, friendliness, demeanor, etc.), and 3) personal history (lineage, breeding, specialized training, etc.). Those interpreters less friendly to companion animals claim that the three criteria (and thus the term “special value” itself) translate solely into a single compressed brute concept: utility.[69]

                Ignore for a moment the question of whether utility is in fact the true interpretation of McCallister, and attempt to apply it to the loss of a companion animal regardless. The standard dictionary definition of utility incorporates the twin ideas of “fitness to some purpose” and “worth to some end”. Are dogs meant to be used for a purpose, and what would that purpose be? As we have related, animals in general are and have been traditionally used by humans toward the achievement of very specific ends, primarily as food, but also occasionally as objects of study and amusement.[70]

                What is the purpose, however, of a person’s dog? It stands to reason that if a dog or cat is used to accomplish work or a task that the human would otherwise do, then it is probably questionable whether one would even call that type of animal a “pet” or companion at all.[71] Given that the majority of companion dogs and cats (other than hunting or fetching breeds) do not do what we would term real “work”, nor do we select or maintain them on the basis of whether they do work or not, then the literal application of the strict view of McCallister would have to be that no companion animal has any value, special or otherwise, and that as a group, all companion animals by definition are essentially valueless in terms of compensation for their loss.

                On the other hand, if we do not restrict ourselves to the most rigid definition of “utility”, and instead apply the concept of “usefulness’ in terms of, not just work value, but aesthetic or enjoyment value as well, then the use of animals as personal properties, including the use of companion animals to enable humans to enjoy their lives more fully is a component of utility - and thus at least measurable toward some number or mathematical equation under either interpretation of McCallister.[72]

                Harmony, commonality of interests, longevity of time together - do those things include or disinclude utility? Do they include or disinclude qualities, characteristics and pedigree? There is a good argument to make that the second, pet-friendly, interpretation of the McCallister test is much more in line with Gaudet than is the utility interpretation. If Gaudet and McCallister treat animals and humans differently, and they do, then what is the logical basis for the distinction? It is not sufficient to say that it is simply because animals are personal properties. Jackets and snowcones are personal properties too, but there is no developed rule or caselaw on the qualities, characteristics and pedigree of those objects, or even on their usefulness to humans. In property law outside that subset dealing with animals, the only measure mentioned is the market value of the property, and there is literally no litigation on the “interpretation” of market value (the concept is straightforward: whatever a reasonable person would buy or sell the object for on the open market is the amount for which the tortfeasor pays for causing its loss). Yet the lack of a market does not extinguish the right to recover - indeed, it may well enhance it:

                             “The fact that damages are difficult to ascertain and measure does not diminish the loss to the person whose property has been destroyed. Indeed, the very statement of the rule suggests the opposite. If one’s destroyed property has a market value, presumably its equivalent is available on the market and the owner can acquire that equivalent property. However, if the owner cannot acquire the property in the market or by replacement or reproduction, then he simply cannot be made whole."[73]

                 Perhaps the logical basis for the distinction is that science treats animals and humans differently. Undeniably that general statement is quite true, and science recognizes that the two “groups” act differently in nature, have recognizably and materially different types of bodies and minds, and in general, have different natural relationships. The law, being the formal study of social relationships, treats humans and animals differently in part based on how the two groups relate to each other socially. Yet all law relies on social distinctions drawn between different groups, and for the law to be substantial, the distinctions need to be substantial. When a law relies upon a weak distinction between groups, the law itself is weak, and becomes exploited or ignored, or it rationale is challenged and changed.

                On what substantial social basis should the law make an economic value distinction between a human’s life and a companion animal’s life? Given an owner and his or her dog, it goes without saying that dogs are certainly distinguishable from their owners in innumerable respects - but to support an economic distinction, which of the multitude are valid and which not? Some distinctions are absolutely baseless as far as real social relations are concerned, and employ criteria that bear no rational connection to the day to day relations between the two group’s members.[74] While laws aren’t required in any way to be scientific, they do seem to have to comport with and be based upon reasoned observations - which is at least the starting point for scientific reasoning. Given what we know about animal/human relations, one could “test” for a rational social distinction between humans and animals by describing both groups as broadly as possible and then straining the definition down through narrower and narrower divisions to observe where the groups may most fundamentally fall away from each other.

                The broadest possible description that encompasses both groups is “all living things”. Living things are most commonly categorized in terms of their organization.[75] The most logical divisions to make in the description, therefore, are those based on “features”; “feature numerosity” is fundamentally different from, say, “letter numerosity” in that the reality of social relations is preserved, not ignored, when we examine features. As we sift, we could count similarities and differences between dogs and humans at each level, both qualitatively and quantitatively, just as Gaudet and McCallister encourage us to do.

                By doing so, we can strain using a qualitative sieve (with outcome measured as a strata of complexity) and a quantitative sieve (with outcome measured as the pure number of similarities and differences). Were a ratio and then a graph to be generated, a quasi-scientific test for observable social distinctions between humans and dogs could be developed in which both micro- (i.e., molecular and anatomical) as well as macro- (i.e., behavioral and cultural) comparisons could be made. Companion animals’ role throughout prehistory could be assigned legal meaning in being assigned a scaled dollar value that coincides with their associational and biological value.[76]

                Even without actually making such a chart, one could at least imagine that it will be the cultural end of the graph which will be deemed more critical to people. Humans made policy decisions early on in prehistory in attending to the value of animals that higher levels of organization are afforded more weight than lower ones; that the macro world is more economically justifiable to others than the micro world. In strict evolutionary terms, the attempt of humans to place themselves “above” other animals on a scale of development is of course ludicrous; humans are no more developed or complex than any other animal, nor any more evolved or higher on a chain of life than any other animal. In evolutionary terms, all extant animals are well adapted for their own circumstances by definition. In strict social terms, on the other hand, the placement of humans “above” other animals on a scale of development is perfectly reasonable; we are much more developed in a social sense than any other creature on the face of the planet, regardless of how complex their systems may be. No species has transformed the planet in the manner that we have or has intricately altered the communal and physical environments in the manner that we have.[77]

                The concept of utility seems to be a hidden plea to see ourselves in other animals and to look for human values - of being alive, of having friends, of providing a living, and of providing purpose in daily routine - in non-humans. As an axiom of the translation of life into dollars, the spectrum or continuum of objects of value use these criteria: irreplacability, communication, bonding behavior, and cooperation. Even Gaudet admits as much, and a test for dogs should include within it a recognition that they have associational and relational value that extends far beyond the economic value of their status as commercial items.[78]

                Do companion animals, do captive animals have a purpose? That is a terribly loaded question. On the one hand, animals are all objects in nature, and therefore have no more “purpose” than do volcanoes or mudflats. Natural objects are not “designed” by anyone, there being no designer other than evolution by natural selection.[79] Do companion animals, do captive animals have value? At least certain types of animals, notably companion dogs and cats, are very definitely the result of 15,000 - 20,000 years of artificial selection by humans and certainly have been designed or fashioned in a real sense by humans to accomplish a certain end to achieve a personal value to owners.[80] Captive animals in zoos, as collections in and of themselves, have been fashioned to accomplish similar ends to human communities.[81]

                The law has stated that domestic animals are those “naturally tame and gentle, or that by long association with humans have become thoroughly domesticated and are now reduced to such state of subjection to their will that they no longer possess disposition or inclination to escape.”[82] The test for what specifically are domesticated animals under the law is whether the animals, as a class, are recognized as devoted to the service of humans.[83] Gaudet and McCallister, in a nutshell, together envision a valuation scheme in which that service would be synonymous with or at least include the price of companionship and exclude the lack of market worth.

    CONCLUSION
     
     “The concept of ownership is deeply imbedded in our feelings for dogs. They are ‘our’ dogs; we are their masters. To own an exotic breed of dog enhances our status in the same way that our other possessions do. We announce our rank. We may or may not treat our dogs well, but we never consider them beings that should be ‘set free.’ ”[84]                                                                                   

     Animals are personal properties, and, as personal properties, have value. To appreciate the true economic value of animals, we must appreciate that throughout history, the private ownership by humans of material objects - including of manifestations of natural resources such as land - has logically resulted in the creation of numerous classes of owners and non-owners. By definition, private ownership is an exclusive activity: those who do not own the object that you own must necessarily be treated differently under the law, and prevented from enjoying the same rights you enjoy with respect to those objects.

    We divide ourselves, animals though we are, from the rest of Animalia in large part because we claim we can possess property and the other animals cannot, and that we can give broad meaning to such possession and the other animals cannot. A great deal of what is termed human nature, including our tendencies toward aggression and competition with each other, are enhanced by the belief that we possess things exclusively and value certain things highly. Those things include the animals that we want to be close to us, the animals in our zoos and in our homes. Their value stems, in large part, from the comfort and well-being we derive from their close association in our homes and communities.

    The zoological menagerie, for its part, has been primarily intertwined with the symbolic role of animals within our culture. No one eats, harvests, employs, or truly imprisons the animals in zoos; they are mostly urban luxuries, representing the city dweller’s aesthetic perception of and romantic nostalgia for the wild. The family pet, for its part, has been primarily intertwined with our insatiable need for social companions of all stamps. Companion animals, to the extent that they have a social “purpose” created by humans, are most emphatically non-commercial objects valued entirely for the comfort and well-being they impart to the owner as a benefit of ownership.

    In turn, from its inception in prehistory on, the law has been primarily concerned with the symbolic role of human interactions within each culture that maintains it. No one physically creates or entirely destroys legal relationships - they are either recognized or ignored, caringly recorded and attended to, or carelessly forgotten and abandoned. Outside the law, animals stand representative of a variety of cultural forms. They may be at one and the same time entertainment devices, educational displays, museum curiosities, research subjects, dangerous instruments, pets on their way to being domesticated, or wild things simply passing through an artificial enclosure soon on their way to being wild once more. Within the law, nevertheless, animals are foremost the personal and business properties of people, and the potential sophistication of such a role carries with it a mandate to consider more particularized legal classifications as to their economic worth as usable and useful objects derived from nature.


    --------------------------------------------------------------------------------

    * B.S. Zoology, OSU (1983); M.S. Journalism, Univ. of Oregon (1984); J.D., Northwestern School of Law (1987);

       Ph.D. Biology, UCLA (1997). The author is indebted to Katie Pool and Steven Wise for assistance with some of

       the ideas presented in this article, and to Amber Anderson for assistance with some of the legal research.

    [1] Humans being animals, of course, it would be most appropriate to formally distinguish between “non-human

      animals” and “human animals” throughout the article. In the interest of efficiency, however, I will use the more

      traditional convention of referring to the first group as “animals” and the second as “humans.” The terms

      “captives”, “exotics” and “zoo animals” are used interchangeably as synonyms for “all non-human animals

      currently maintained by humans in zoological parks and sanctuaries”. The terms “pets”, “companion animals”,

      and “domestics” are not used synonymously but are distinguished in the article.

    [2] I use the terms “economic value”, “monetary value”, and “financial value” interchangeably.

    [3] Bennett, E. T. quoted at p. 7 in The Tower Menagerie. Robert Jennings Pub. Co., London (1829).

    [4] Romer, A. The Vertebrate Body. W.B. Saunders Co., Philadelphia (1977).

    [5] Postlethwait, J. and Hopson, J. (eds.) The Nature of Life, at pp. 331-332 (1992).

    [6] See generally, Hickman, C.P., L.S. Roberts, and F.M. Hickman (eds.) Integrated Principles of Zoology. Times

       Mirror/Mosby College Publishing, St. Louis (1988). The use of common names in this article may not be

       preventable but it is unfortunate. Cougars, panthers, mountain lions and pumas, for instance, are all simply the

       same animal disguised under different common names, histories and regional descriptions.

    [7] Romer, A.. (1977), supra.

    [8] See, e.g., Ewer, R.F. The Carnivores. Cornell University Press, N.Y. (1973).

    [9] OLIVER WENDELL HOLMES, THE COMMON LAW (1963).

    [10] Ritchie, D.G. Natural Rights. Allen and Unwin Co., London (1894).

    [11] See, e.g., Holdsworth, History of the English Law Vol. 7 at p. 491 (1925).

    [12] MARSTON BATES, THE NATURE OF NATURAL HISTORY (1950).

    [13] See, Higgs, E.S. (ed.) Papers in Economic Prehistory. Cambridge University Press, London (1971). See also,

        Guggisberg, C.A.W. Man and Wildlife. Arco Publishing Co., N.Y. (1970).

    [14] See generally, Lund, T. American Wildlife Law at pp. 19-34. University of California Press, Berkeley (1980).

        See also, Clutton-Brock, J. “Domestic Animals in Zoos: The Historical Background to the Domestication of

        Animals” in International Zoo Year Book at pp. 240-243 (1976).

    [15] Koehn, R.K. and T.J. Hibish, “The Adaptive Importance of Genetic Variation”. American Scientist 75:134-141

        (1987). 

    [16] Our newfound ability to clone living creatures hardly changes either the specificity of that biochemical trademark

       or its larger legal significance. For one thing, the process of cloning does not enable the biologist to construct

       animals from scratch. Cloning still relies on the preexistence of the unique genetic directive initially constructed

       by nature. Additionally, cloning at most simply increases the quantity of natural objects. For that reason, it may be

       best to think of cloning primarily as a heightened increase in the possibility of identical twins, an event which

       formerly had to wait for natural happenstance to occur, but which occurred nonetheless.

    [17] Graham, S. “Issues of Surplus Animals” at pp. 290-293 in Wild Mammals in Captivity, Kleiman, D. et. al. (eds.)

        University of Chicago Press, Chicago (1996). See also, Lehmann, F. Carlos The Pet Trade and Extinction. 2 Oryx

        IX at 120-130 (1967).

    [18] Colinvaux, P. Why Big Fierce Animals Are Rare: An Ecologist’s Perspective at pp. 183-233. Princeton University

        Press, Princeton (1978).

    [19]  BCE  refers to “before the common era”. As to dog domestication dates see generally, Martin, P.S. and R.G. Klein (eds.)

        Quaternary Extinctions: A Prehistoric Revolution at p. 55. University of Arizona Press, Tucson (1989).  See also, Ewer, R.F.

         (1973).

    [20]  TURNER, D.C. AND P. BATESON, EDS., THE DOMESTIC CAT: The Biology of its Behavior at pp. 152-153. Cambridge

         University Press, Cambridge (1986).

    [21] Hediger, H. Wild Animals in Captivity. Butterworth Publishers, N.Y. (1950). See also, Tudge, C. Last Animals at

        the Zoo. Island Press, N.Y. (1992).

    [22] Id.

    [23] About 350 BCE,  the zoo at Alexandria became used for biological observations, most notably by Aristotle

        in his “History of Animals”. The educational use of captive facilities has been trumpeted ever since. See, Bostock,

        S. “Education in Zoos at pp. 168-176 in Zoos and Animal Rights. Routledge Pub. Co., Boston (1993).

    [24] Hagenbeck, C. quoted at p. 113 in Beasts and Men. Longman Green, N.Y. (translated by Eliott, H.R.S.) (1909).

        Hagenbeck spent a good deal of his professional life occupied with proving the assertion that captive animals

        deserved the benefits of certain liberties, including from what he recognized and despised to be animal prisons.

        Hagenbeck never felt that animals should be completely liberated; as remarkable a writer and thinker as he was,

         he was a preeminent zookeeper above all else, and confining, not releasing, animals was his trade.

    [25] Many menageries in the past displayed humans, usually natives which accompanied acquisitions of animals

        during  wartime or military expeditions. Laplanders, Nubians, Pacific Islanders, and Eskimos composed the most

        common groups, and often served as the animal’s trainers after capture. See, e.g., Stellingen Tierpark Guidebook.

        Smithsonian Institution Library, National Zoological Park Branch (1913). Mentally disturbed and physically

        disabled people  have been displayed as well. As recently as 1906, the New York Zoological Park exhibited an

        African pygmy as a playmate for a chimpanzee with information on both displayed on the front of the cage. See,

        Mench, J.A. and M.D. Kreger “Ethical and Welfare Issues Associated with Keeping Wild Mammals in Captivity”

        at pp. 157-160 of Wild Mammals in Captivity, Kleiman D. et. al. (eds.) University of Chicago Press, Chicago

        (1996).

    [26] See, Bostock, S. “Communities or Prisons” at pp. 182-185 in Zoos and Animal Rights. Routledge Pub. Co.,

        Boston (1993); Hediger, H. “The Problem of Confined Space” at pp. 43-46 in The Psychology and Behavior of

        Animals in Zoos and Circuses. Dover Publications Inc., N.Y. (1968).

    [27] “Pets, like toys, are friends, confidants or helpers, the comforting resource for children, between them and the

        grown up world of parents and others who arrange their lives, or the reality outside home that may sometimes be

        too painful to be faced.” At p. 191 of Blount, M., Animal Land. Avon Books, N.Y. (1974).

    [28] Postlethwait, J. and Hopson, J. (eds.) The Nature of Life, supra, at p. 333 (1992), supra.

    [29] Id.

    [30]  MARION SCHWARTZ, A HISTORY OF DOGS IN THE EARLY AMERICAS at pp. 8-11 Yale University Press, New

         Haven (1997).

    [31] Redding, R. “A General Explanation of Subsistence Change: From Hunting and Gathering to Food Production”

        Journal of Anthropological Archeology 7:56-97 (1988). Taming an animal does not make it domesticated, and

         most wild animals raised as pets either do not reproduce in captivity or become unmanageable as adults.

    [32] Animals such as sheep, cows and horses have been domesticated as well, obviously, but not for social reasons.

    [33] STEPHEN BUDIANSKY, THE COVENANT OF THE WILD at pp. 43-93. Yale University Press, New Haven

        (1992).

    [34] See, e.g., Turudic v. Stephens, 31 P.3d 465 (Or. App. 2001) (holding cougars to be family pets).

    [35] The fact that we keep, care for and even train fish , small mammals or reptiles, for instance, doesn’t mean

       that we can form a relationship with those animals in the sense that we can and have formed with dogs and

       cats. A relationship implies mutuality; communication and interchange of emotions in both directions.

       Humans have been engaging in that interchange with dogs and cats since the end of the Pleistocene, the last

       Ice Age. There is nothing in the genetic characteristics of a turtle or goldfish that allow it to engage in bond

       forming with us no matter how much we may project feelings onto it. The fact that species can be and have

       been tamed in no way means that they have been domesticated. Domestication is mandated by the effects

       of very directed development over thousands of generations. Domestic species owe much of their existence

       to the interference of humans by selective breeding, the manipulation of hereditary characteristics.

    [36] Clutton-Brock, J. Domesticated Animals From Early Times. University of Texas Press, Austin (1981).

    [37] Hyland v. Borras, 719 A.2d 662 (NJ Super AD 1998).

    [38] The argument that dogs already have a specific monetary value, that is, the price at which they may have been

        purchased, ignores the fact that relationships may be formed with them. As trade goods, it is their appreciation,

        not depreciation, over time which has not been taken into account. See, e.g., Sollenberger v. Cranwell, 614 P.2d

        234 (Wash. App. 1980) (evidence of purchase price is not a measure of value itself).

    [39] See, e.g., McCallister v. Sappingfield, 72 Or. 422 (1914); Stull v. Porter, 100 Or. 514 (1921); Melton v. South

        Shore U-Drive Inc. 303 N.Y.S.2d 751 (N.Y. App. Div. 1969); Stettner v. Graubard 368 N.Y.S.2d 683 (N.Y.

        Town Ct. 1975); Rimbaud v. Beiermeister 154 N.Y.S. 333 (N.Y. App. Div. 1915); Kling  v. US Fire Ins. Co.

        146 So.2d 635 (La. App. 1962); Blauvelt v. Cleveland 190 N.Y.S. 881 (4th Dept. 1921); Gluckman v. American

        Airlines, Inc. 844 F.Supp. 151 (SDNY 1994); Daughen v. Fox 539 A.2d 858 (Pa. Super. 1988); Roman v. Carrol

        621 P.2d 307 (Ariz. Ct. App. 1980); Jankoski v. Preiser Animal Hospital 510 NE2d 1084 (Ill. App. Ct. 1987);

        Fowler v. Ticonderoga 516 N.Y.S.2d 368 (N.Y. App. Div. 1987); Julian v. DeVincent 184 SE2d 535 (W.Va.

        1971); Smith v. Palace Transportation Co. 253 N.Y.S. 87 (N.Y. Mun. Ct. 1931); McKinney v. Robbins 892

        S.W.2d 502 (Ark. 1995); Bueckner v. Hamel 886 S.W.2d 368 (Tex.App. 1994); City of Canadian v. Guthrie 87

        S.W.2d 316 (Tex.App. 1932).

    [40] Clutton-Brock, supra.

    [41] See, e.g., Rachels, J. Created From Animals: The Moral Implications of Darwinsim. Oxford University Press,

        Oxford (1990).

    [42] Jones v. Craddock 187 SE 558 (NC 1936); Griffin v. Fancher 20 A.2d 95 (Conn. 1941).

    [43] Carroll v. Rock, 469 SE2d 391 (Ga. App. 1996); Price v. Brown, 651 A.2d 548 (Pa. Super. 1994).

    [44] See, e.g., Young’s Bus Lines v. Redmon, 43 S.W. 2d 266 (Tex. Civ. App. 1931).

    [45] See, DeVine v. Buckler, 603 P.2d 557, 124 Ariz. 286 (Ariz. App. 1979).

    [46] See generally, Debra Squires-Lee, In Defense of Floyd: Appropriately Valuing Companion Animals In Tort,

        70 New York University Law Review 1059 (1995).

    [47] At least fourteen separate and well-reasoned decisions within the last three decades have indicated that the

        emotional distress associated with the death of a companion animal is a properly considered measure of

        damages. Campbell v. Animal Quarantine Station, Etc. 632 P.2d 1066 (Haw. 1981); Peloquin v. Calcasieu

        Parish Police Jury 367 So.2d 1246 (La. App. 1979); Lincecum v. Smith 287 So.2d 625 (La. App. 1973); Gill v.

        Brown 695 P.2d 1276 (Idaho Ct. App. 1985);Knowles Animal Hospital v. Wills 360 So.2d 37 (Fla. Dist. Ct. App.

        1978); Animal Hospital v. Gianfrancisco 418 N.Y.S.2d 992 (N.Y. Dist. Ct. 1979); Richardson v. Fairbanks North

        Star Bureau 705 P.2d 454 (Alaska 1985); Broussaeu v. Rosenthal, 443 N.Y.S.2d 285 (N.Y. 1980); La Porte v.

        Associated Independents, Inc., 163 So.2d 267 (Fla. 1964); Corso v. Crawford Dog and Cat Hospital, Inc., 415

        N.Y.S.2d. 182 (N.Y. 1979); Morgan v. Kroupa 702 A.2d 630 (Vermont 1997); Paul v. Osceola County 388 So.2d

        40 (Fla. Dist. Ct. App. 1980); Soucek v. Banham 524 N.W. 2d 478 (Minn. Ct. App. 1995); Johnson v. Wander

        592 So.2d 1225 (Fla. Dist. Ct. App. 1992).

    [48] In that sense, it is a tort similar to those that concern the impairment of relationships, i.e., intentional interference

        with contract, or intentional interference with prospective business advantage. See, e.g., Fox v. Country Mutual

        Insurance Company 7 P.3d 677, 169 Or. App. 54 (2000); Logan v. West Coast Benson Hotel 981 F. Supp. 1301

        (D. Or. 1997); Northwest Natural Gas Co. v. Chase Gardens, Inc. 982 P. 2d 1117, 328 Or. 487 (1999); Uptown

        Heights Associates Ltd. Partnership v. Seafirst Corp. 891 P. 2d 639, 320 Or. 638 (1995).

    [49] Compare Brock v. Rowe (Washington Co. C002535CV) (tort of loss of companionship allowed) with Gluckman

        v. American Airlines, Inc. 844 F.Supp. 151 (SDNY 1994) (Under New York law, no individual cause of action

        for loss of companionship of a pet exists, or for the pain and suffering of the animal); Daughen v. Fox 539 A.2d

        858 (Pa. Super. 1988) (No right to tort of “loss of companionship” is recognized since it only comes out of loss of

        consortium, which is in marital relationship). The tort’s evolution in Oregon stemmed from dicta in Norwest

        v. Presbyterian Intercommunity Hospital, 293 Or. 543 (1982).

    [50] La Porte v. Associated Independents, Inc., 163 So.2d 267 at 268 (Fla. 1964).

    [51] Corso v. Crawford Dog and Cat Hospital, Inc., 415 N.Y.S.2d. 182 (N.Y. 1979).

    [52] Broussaeu v. Rosenthal, 443 N.Y.S.2d 285 at 286-287 (N.Y. 1980).

    [53] Morgan v. Kroupa 702 A.2d 630 (Vermont 1997).

    [54] Waisman and Wise

    [55] Value is a social (and therefore “legalistic”) concept, while valuation is a mathematical (and therefore “scientific”)

        concept.

    [56] See, e.g., Madison v. Hood, 223 NW 178, 207 Iowa 495 (Iowa 1929) (cows); St. Gerard Co. v. Fricker, 27 P.2d

        678, 42 Ariz. 503 (Ariz. 1934) (bees). See generally, Pike, M. Man and Food. McGraw Hill Book Co., N.Y.

        (1970).

    [57] See, e.g., ORS 30.020 (2001 ed.).

    [58] At issue is what would have been made wage-wise, what the spending and saving habits were like, and

        what others looked to as far as providing for them. Care and attention to services around the home can be

        and are taken into account.

    [59] RCW 16.08.010 (1999 ed.).

    [60] See, Stull v. Porter 100 Or. 514 (Or. 1921); Fredeen v. Stride, 269 Or. 369 (Or. 1974); Jones v. Craddock 187 SE

        558 (N.C. 1936); Griffin v. Fancher 20 A.2d 95 (Conn. 1941); Hyland v. Borras 719 A.2d 662 (NJ Super AD

        1998); Soucy v. Wysocki 96 A.2d 225 (Conn. 1953); Wertman v. Tipping 166 So.2d 666 (Fla. App. 1964);

        Levine v. Knowles 197 So.2d 329 (Fla. App. 1967); Brown v. Crocker 139 So.2d 779 (La. App. 1962); Quave v.

        Bardwell 449 So.2d 81 (La. App. 1984); Fritts v. NY and NER Co. 26 A. 347 (NY 1902); City of Garland v.

        White 368 S.W.2d 12 (Tex. Civ. App. 1963); Wilson v. City of Eagan 297 N.W.2d 146 (Minn. 1980); Paguio v.

        Evening Journal Assn. 21 A.2d 667 (N.J. 1941).

    [61] a. Sick German Shepherd carelessly euthanized by vet. Value: $500.00 Fredeen v. Stride 269 Or. 369 (Or. 1974).

        b. Collie intentionally shot while chasing a deer. Value: $125.00 Stull v. Porter 100 Or. 514 (Or. 1921).

        c. German Shepherd intentionally shot while chasing chickens. Value: $250.00 Green v. Leckington 192 Or. 601

            (1951).

        d. Scotch Collie intentionally shot in confrontation with horse. Value: $200.00 McCallister v. Sappingfield 72 Or.

            422 at 427 (1914).

        e. Boxer intentionally shot by policeman. Value: $300.00 City of Garland v. White 368 S.W.2d 12 (Tex. Civ.

           App.1963).

        f. Toy fox terrier killed by another dog. Value: $100.00 Kling v. US Fire Ins. Co. 146 So.2d 635 (La. App. 1962).

        g. Mixed breed carelessly struck by motorist. Value: $100.00 Griffin v. Fancher 20 A.2d 95 (Conn. 1941).

        h. Shi Tzu killed by another dog. Value: $500.00 Hyland v. Borras 719 A.2d 662 (NJ Super AD 1998).

    j. Sick Pekingese puppy carelessly euthanized by vet. Value: $50.00 Lincecum v. Smith 287 So.2d 625 (La. App.

           1973).

        k. German Shepherd carelessly lost by kennel. Value: $1000.00 Wertman v. Tipping 166 So.2d 666 (Fla. App.

           1964).

    [62] 378 F. Supp. 1354 at 1363, fn. 5 (S. D. Georgia 1974).

    [63] Speiser, S., Recovery for Wrongful Death Section 3.45, p. 233 (1966).

    [64] See, Thompson v. Offshore Company, 440 F. Supp. 752 at 764 (S. D. Texas 1977); Voelker v. Frederick Business

        Properties Co.,  465 SE 2d 246 at 251 (W. Va. 1995).

    [65] 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed. 2d 9 (1974).

    [66] See generally, Richard and Alice FIENNES, THE NATURAL HISTORY OF DOGS. Bonanza Books, N.Y.  (1968).

    [67] See generally, Rowan, A. (ed.) Animals and People Sharing the World. University Press of New England,

        Hanover, N.H. (1988); Mason, I. (ed.) The Evolution of domesticated Animals. Longman Press, London (1984).

    [68] See, McCallister, supra. Many utilize the term  “special value”. See, e.g., Wertman v. Tipping, 166 So.2d

        666 (Fla. App. 1964); Levine v. Knowles, 197 So.2d 329 (Fla. App. 1967)

    [69] See, e.g., Richardson v. Fairbanks North Star Borough, 705 P2d. 454 (Alaska 1985) (holding that the value of the

        dead animal is not the owner’s subjective estimation of its value as a pet, but only its use).

    [70] Rowan, A. (1988), supra. See, Missouri Pac. R. Co. v. Edwards, 14 SW 2d 230, 178 Ark. 732 (Ark. 1929) (“the

        value of the dog [harmed in the case] is shown by the prizes it won”).

    [71] Cf. Jones v. Walker, 433 SE2d 726 (Ga. App. 1993) (Family purpose doctrine doesn’t extend to cases involving

         animals).

    [72] Loss of use has been given for animals that can’t be “used” at all (City of Canadian v. Guthrie, 87 SW 2d 316

        (Tex. Civ. App. 1935)), and numerous items, including animals, have been given “value” based on the “comfort

        and well-being” they impart to their owners who now suffer from their deprivation (Featherston v. Hartford Fire

        Ins. Co., 146 F.Supp. 535 (D.C. Ark. 1956); Crisp v. Security Nat. Ins. Co., 369 SW 2d 326 (Tex. 1963)). 

    [73] Mieske v. Bartell Drug Co., 593 P.2d 1308 at 1311 (Wash. 1979).

    [74] For example, the number of letters in the common names of the two groups, or the color of the skins of the

        members of the two groups. A “letter numerosity” distinction-based rule, or a “skin color” distinction-based

        rule employ irrational criteria.

    [75] Postlethwait, J. and Hopson, J. (eds.) The Nature of Life, at pp. 331-332 (1992), supra.

    [76] See generally, Megarry, T. Society in Prehistory. New York University Press, N.Y. (1995).

    [77] Ravetz, J. Scientific Knowledge and Its Social Problems. Oxford University Press, N.Y. (1979).

    [78] See generally, Nichols v. Sukaro Kenels, 555 NW 2d 689 (1996).

    [79] Romer, A., supra.

    [80] Clutton-Brock, J. “Man-Made Dogs”. Science 197:1340-1342 (1977); Clutton-Brock, J. “Origins of the Dog:

        Domestication and Early History” at pp. 8-20 in The Domestic Dog. Serpell, J. (ed.). Cambridge University Press,

        Cambridge (1995).

    [81] Tudge, C., supra.

    [82] Warren Cty. Combined Health Dist. v. Rittenhouse, 689 NE 2d 1036, 117 Ohio App. 3d 97 (Ohio App. 12

        Dist. 1997).

    [83] Id.

    [84] MARION SCHWARTZ, A HISTORY OF DOGS IN THE EARLY AMERICAS at p. 122, Yale University Press, New

         Haven (1997), supra.