That’s Not “Stock” . . . Not Chapter 38 “Stock” At Least

Photo by Bruno Kelzer on Unsplash

In case you were wondering, injured “stock” for which a litigant may recover attorney fees pursuant to Chapter 38 does not include any ol’ stock. The Houston Court of Appeals (14th Dist.) recently held that “stock” in Texas Civil Practice & Remedies Code section 38.001(6) does not include pet dogs. See Palfreyman v. Gaconnet. Though this holding may appear obvious at first glance, the court’s analysis reveals nuance on the issue.

The plaintiff in Palfreyman successfully litigated a bailment claim based on negligence for the death of her two dogs, both of which were boarded at the defendant’s business. She asserted a claim for attorney fees pursuant to Chapter 38. The trial court denied her request for attorney fees and the court of appeals affirmed.

The appellate court focused on the modifiers “killed” and “injured” that precede the word “stock” in section 38.001(6): “A person may recover reasonable attorney’s fees from an individual or corporation . . . if the claim is for . . . killed or injured stock[.]” The modifiers, according to the court, denote something that was living at some point. The court looked to statutory definitions of “livestock” and the dictionary definition of “stock” for guidance, noting that these definitions all include animals kept or raised on a farm or under agricultural practices, some raised for human consumption. These definitions clearly do not include “a neutered dog kept solely for companionship.”

The court did not hold that “dogs” generally do not constitute “stock.” The court expressly left open the question whether section 38.001(6) included dogs kept solely to breed and sale or dogs bred to work on a farm or ranch. What is clear, though, is “stock” does not include something that was never alive—it does not include an investment portfolio, the merchandise kept in a store or warehouse, or the butt of a rifle. Does “stock” include plants or the “main stem of a plant”? Cf. Tex. Water Code § 36.001(22) (defining “nursery grower” to include “activities associated with the production or multiplying of stock such as the development of new plants”).