However it is well established that where an animal has little or no value for sale or consumption, that assigned to the uses to which it is put provides grounds for recovery where loss of profits in a business enterprise relying on these uses is due to its detention and wrongful taking (U.S. v. Hatahley Ca. 10 Utah) and its unjustified injury or destruction (Moses v. Southern P.R. Co. 18 Or. 385, 23 P. 498) whether by wilful act (Helsel v. Fletcher, 98 Okla. 285, 225 P. 514, 33 A.L.R. 792) or by negligence or omission (Brown v. Sioux City 424 Iowa 1196, 49 N.W.2d 853; Bombard v. Newton, 94 Vt. 354, 111 A. 510,11 A.L.R. 1402). In the case at bar, the value of the decedent as the wellspring of a burgeoning trust in plaintiff's name composed of royalty and licensing fees pertaining to its various profitable configurations as dolls, ceramic items, mugs, keychains, puzzles, T shirts, logos, comic strip rights and a projected animated series for television is plainly evident and even, in point of fact, inadvertently attested to by defendant in an earlier and wondrously ill considered action filed and dismissed in a lower jurisdiction claiming a generous share of such profits as having provided the circumstance for its notorious predicament in the first place.
Here by peradventure we re-encounter the defendant in his alleged capacity among bailees 'who have no interest in the chattels, no right of detention as against the owner, and neither give nor receive a reward' (Holmes op. cit, Lecture VI, Possession), and thence to the subsequent charge of conversion wherein plaintiff's claim embraces what might be termed the last act by defendant in this drama, referring not to Spot in vivo but, as on the corpse littered stage with which Shakespeare brings down the curtain on Timon of Athens and elsewhere, to Spot's remains, summarily removed by agents of the defendant under the eyes of the press and a wide national television audience exercising its obligation under a century old municipal ordinance mandating the speedy and orderly removal of the carcasses of dead animals as ranking in value no higher than garbage with which they share a pungent attraction to flies threatening the spread of disease germs among the local population. However an owner's property rights in an animal are not foreclosed upon its death (Knauer v. Louisville, 20 Ky. L Rep. 193, 45 SW 510, 46 SW 701), and while granting that the body of a dead animal may not pose a nuísancQ p9r se, it may be or become one in fact (Schoen Bros. v. Atlanta, 97 Ga. 697, 25 SE 380; Richmond v. Caruthers, 103 Va. 774, 50 SE 265), plaintiff has claimed that in depriving him of the opportunity to remove and dispose of the remains within a decent interval after death (Richmond v. Caruthers, supra) his constitutional property right to due process under the Fifth and Fourteenth Amendments has thereby been violated irreversibly since the whereabouts of said remains are not now known. Notwithstanding the dark commerce of the Resurrectionists Burke and Hare, corpus humanum non recipit aestimationem, but property value in the animal remains in question is attested by purchase offers in evidence from taxidermists in Chicago, Dallas and Kamakura Japan, by an enterprising glover in San Francisco seeking the pelt as a prototype for a line to be marketed as 'Hiawatha's Magic Mittens' labeled 'Genuine Simulated Spotskin® Wear 'Em With The Furside Outside,' and an urgent bid from Bao Dai's Tasti-Snax in Queens Village, New York, for purposes undisclosed. Pending a search at the Village dump defendant demurred and the charge was dismissed ex mora at the discretion of the court.
The issues of animal trespass and the conflicting portrayal of Cyclone Seven as an attractive nuisance which were disposed of in an earlier action before this court (see Szyrk, supra) surfaced again in the jury trial here under review. As held in Baker v. Howard County Hunt, 171 Md. 159, 188 A. 223; Pegg v. Cray, 240 N.C. 548, 82 S.E.2d 757, and elsewhere, no liability attaches to the owner of a 'reputable dog' for its straying without his consent and unaccompanied by him onto the land of another, and defendant's claim excluding the dog Spot from this category on grounds of his disreputable companions on neighborhood outings was dismissed. Where there is some authority for liability attaching to unfenced lands whereon are to be encountered erections or machinery negligently maintained so as to constitute a trap (Malernee Oil Co. v. Kerns, 187 Okla. 276,102 P.2d 836), defendant denied such liability claiming as ordinary use free and open access to the subject premises and the erection thereon as public art where, by permitting the trespassing animal to roam at large, its owner assumed the risk for any harm or injury befalling it and thus yielded any right of action. Here the court concurred, since where plaintiff is found exempt from liability for the beast's trespass this does not make such trespass lawful rendering defendant liable for injuries not wilfully or wantonly inflicted (Pure Oil Co. v. Gear, 183 Okla. 489, 83 P.2d 389; Tennessee Chemical Co. v. Henry, 114 Tenn. 152, 85 S.W. 401). On the related charge of distraint, where the distress is lawful it is well established that the distrainer is obliged to feed and care for the animal which stands uncontested in this action and only in the event of his negligence will he be held liable (Kelly v. Easton, 35 Ida. 340,207 P. 129, 26 A.L.R. 1042), but where such distraint is for any reason
Illegal the distrainer regardless or negligence remains liable for any injury to the beast while under his care (Dickson v. Parker, 4 Miss. (3 How.) 219), and here such failure resulting in unjustifiable pain and suffering on the beast's part through any and each act of neglect or omission may appear in the garb of passive cruelty where intention is not essential, as in such wilful acts as tying a flaming oil can to a dog's tail in State v. Kemp, 234 Mo. App. 827, 137 5.W.2d 638, or setting the dog itself afire (Commonwealth v. Gentile, 255 Mass. 116, 150 N.E. 830). Thus where an action may be maintained on a case for unintended injury or destruction, it is obligatory upon the animal's owner not only to allege facts showing defendant's negligence, but that such injury or destruction came about through this negligence as the proximate cause.
Nowhere in all of law are we confronted by a concept that has sired more confusion and disagreement and so presumably swelled the coffers of the legal profession than that of 'proximate cause,' a phrase derived from a formulation by then Lord Chancellor Sir Francis Bacon some four centuries ago, Injure non remota causa, sed proxima, spec-tatur, summoning shades of Ockham's razor from a past yet more remote. 'Cause and effect find their beginning and end in the limitless and unknowable,' wrote Judge Powell in Atlantic Coast Line R. Co. v. Daniels (8 Ca. App. 775, 70 S.E. 203). Therefore courts, in their finitude, do not attempt to deal with cause and effect in any absolute degree, but only in such a limited way as is practical and as is within the scope of ordinary human understanding. Hence arbitrary limits have been set, and such qualifying words as "proximate" and "natural" have come into use as setting the limits beyond which the courts will not look in the attempt to trace the connection between a given cause and a given effect.'
in alleging a bolt of lightning as the proximate cause of the victim's destruction in the instant case, defendant contends that the court erred in submitting the question of negligence to the jury and should have declared as a matter of law that an act of God was responsible for the dog Spot's death. Further, it has been held that this need not be the immediate cause, if it followed in a logical and unbroken sequence originating with the act of God (Blythe v. Denver & R.G.R. Co., 15 Colo. 333, 25 P. 702), and thus even absent the corpus delicti where singed fur might have evidenced that direct encounter with the Deity the fright so engendered would without physical impact be sufficient in its internal operation in that ghastly interval to cause death (Louisville & N.R. Co. v. Melton, 158 Ala. 509, 47 SO. 1024).