Luick v. Sondrol , 200 Iowa 728 ( 1925 )

Plaintiff's testimony, in substance, is that, while he was riding an unshod horse along a paved street, defendant's dog barked at and frightened the horse; that the horse jumped, and fell on the plaintiff, breaking the plaintiff's leg. There was evidence that the pavement was wet and slippery, and that the horse's feet slipped, and there was evidence tending to show that the dog frequently ran out, and chased and barked at passing horses. At the close of the evidence, the plaintiff withdrew all claims of common-law liability and rested his case upon Section 2340, Code Supplement, 1913.

The court gave the following instructions:

"4. Under the laws of this state it is lawful for any person to kill any dog caught in the act of worrying, maiming, or killing any sheep or lamb or any other domestic animal, or any dog attacking or attempting to bite any person; and the owner is liable to the party injured for all damages done except when the party injured is doing an unlawful act. In this case plaintiff at said time was not doing an unlawful act. The question to be determined by you is whether or not the defendant's dog did anything with respect to the plaintiff, or the horse upon which plaintiff was riding, which under the law would justify the killing of the dog. Any person who owns, harbors, or keeps a dog is the owner thereof, within the meaning of the law. If you find, from the weight or preponderance of the evidence introduced upon the trial, that defendant's dog was worrying said horse, or was doing any acts which under the law would justify the killing of the dog, and that such acts of the dog caused plaintiff's horse to fall, and that the proximate cause of the injury of which plaintiff complains was such acts on the part of the dog, then your verdict should be for the plaintiff. If, however, you fail to so find, then plaintiff is not entitled to recover in this action, and in that event your verdict should be for the defendant. In determining the question as to the acts of defendant's dog at the time in question, if any, you have a right to take into consideration the habits, temperament, and conduct of said dog prior and subsequent to plaintiff's injury, as same is disclosed by the evidence before you. `To worry' means `to harass, to fret, to vex, to tease or annoy.'"

"6. The defendant cannot be held liable in this case simply because the dog in question appeared upon the public street, as, under the law, dogs are free commoners, and have a right to be and appear upon the public street, if they behave properly; and the defendant would not be liable to plaintiff even though plaintiff's horse became frightened at the dog and fell and broke plaintiff's leg, unless you find that the dog was in the act of attacking or worrying said horse."

The plaintiff is not altogether clear and consistent in his contentions respecting the law governing this case. We think, however, that the instructions referred to are erroneous.

I. In the first place, though the point is not made in 1. ANIMALS: argument, and the instruction in this respect personal may have been without prejudice, in order that liability: there may be no misapprehension we call dogs: attention to Alexander v. Crosby, 143 Iowa 50, common-law which holds that, while one who harbors a dog and may be liable at common law, statutory liability statutory rests only on the owner. liability distin- guished.

II. We think the instructions here are open to the objection that they are misleading. The plaintiff's testimony is that:

"This dog came out kind of from behind like, and jumped and barked at the same time, and the horse fell on 2. TRIAL: me, and I fell on my side. The horse jumped up, instruc- and the dog made a couple of lunges, and I tions: hollered at him and kicked him, and he made for applica- the horse. * * * He came out and made one jump bility and barked, and the horse fell. * * * When I to evidence. first saw him, I was on the ground, and he was trying to bite the horse."

The only other eyewitness, Becker, says that plaintiff "was going down the street on horseback, and the pavement was wet. The dog came out and barked at the horse. The horse shied to one side and slipped and fell."

The testimony tends to show that the dog had a habit of chasing and barking at horses.

There is no evidence that the dog was attacking or attempting to bite any person before the injury. The fourth instruction lays emphasis on the question "whether or not the defendant's dog did anything with respect to the plaintiff or the horse which under the law would justify the killing of the dog," and tells the jury that, if they find "that defendant's dog was worrying said horse, or was doing any acts which under the law would justify the killing of the dog," and such acts by the dog caused plaintiff's horse to fall, and the proximate cause of the injury was such acts, the verdict should be for the plaintiff. The only act of the dog of which there was evidence, and for the consequences of which the defendant might be liable, was the worrying of the horse. The question was whether the dog was doing this, rather than the general question whether it was doing anything that would justify its killing. The court left it to the jury to say whether the dog was doing something else — for instance, attempting to bite the plaintiff after he was injured — which would justify killing it. While the court left the question of proximate cause to the jury, the jury were left to determine for themselves what would be proximate cause, and were not definitely instructed as to the necessary causal relation between the act of the dog and the injury that must exist as a prerequisite to a right of recovery.

III. We think it was a question for the jury whether the dog was worrying the horse, and whether the worrying 3. ANIMALS: of the horse was the proximate cause of the personal injury. The dog was small, — six to ten inches liability: high; but small creatures — flies for dogs: instance — are worrisome. The evidence tends to "worrying show that the dog chased and barked at the animal" horse, causing it to shy, slip, and fall. This defined. was evidence that the dog was worrying the horse. Marshall v. Blackshire, 44 Iowa 475.

It is not required that the worrying be protracted. The worrying commenced immediately with the chasing and barking, and was evidenced by the nervous reaction of the horse 4. ANIMALS: shown in shying. The vicious habit of the dog personal must be shown in the common-law action, but not liability: in an action under the statute, though relevant. dogs: Beckler v. Merringer, 131 Iowa 614; Dougherty v. vicious Reckler, 191 Iowa 1195; Alexander v. Crosby, 143 character. Iowa 50; Sanders v. O'Callaghan, 111 Iowa 574, 579; Miles v. Schrunk, 139 Iowa 563; Stuber v. Gannon, 98 Iowa 228.

In Brown v. Moyer, 186 Iowa 1322, relied on by defendant, plaintiff's claim was that the dog attacked and attempted to bite the person. This was the only ground of statutory liability alleged, and there was no evidence to sustain it.

IV. In the sixth instruction the jury were told that dogs have 5. TRIAL: a right to be upon the public street "if they instruc- behave properly." We think that this, in the tions: situation here, was misleading and capable of confining being misunderstood. The consideration of the jury to jury should have been kept to the specific act evidence. of misbehavior of which there was evidence.

Other rulings of the court complained of are without merit, or are not likely to recur.

The judgment is — Reversed.

FAVILLE, C.J., and EVANS and ALBERT, JJ., concur.