Alexander v. Crosby
| Decision Date | 18 February 1909 |
| Citation | 119 N.W. 717,143 Iowa 50 |
| Parties | J. E. ALEXANDER v. SAMUEL H. CROSBY, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED SATURDAY, JUNE 5, 1909.
Appeal from Poweshiek District Court.--HON. K. E. WILCOCKSON, Judge.
ACTION for damages resulted in a judgment against defendant, from which he appeals.
Reversed.
Will C Rayburn and S. H. Crosby, for appellant.
Boyd & Bray, for appellee.
The plaintiff drove his team down State Street in Grinnell turning west on Fifth Avenue, and, after going a short distance, a dog, as is alleged, ran under the carriage and nipped the hind leg of one of the horses. It kicked over the tongue, striking the other horse, and the team ran away. The sufficiency of the evidence to sustain the finding that the dog bit the horse is challenged, but an examination of the record has convinced us that the issue was for the jury. So, too, the amount allowed as damages has such support in the evidence as to preclude interference by this court.
The defendant's wife testified that she owned the dog, bought and paid for it, took care of it, that it was kept at defendant's house on his premises, and that at her request he had paid the taxes on it. Another witness testified that he had seen the dog with defendant on the street twice at least. Plaintiff testified that in talking to him defendant referred to it as "my dog," and he alluded to it in the same way as a witness at the trial. This evidence was sufficient to carry to the jury the issue as to whether defendant was owner of the dog.
The court, however, instructed "that if the defendant Crosby had the dog in his possession, and he had kept the dog on his premises, and kept him as owners usually do keep their dogs and that he was following him on the public streets, and he claimed to own the dog, then he is owner of the dog in law and in so far as this action is concerned."
At the common law one who harbored a dog knowing him to be vicious, as well as the owner in possession, was liable for the injuries committed by him (Marsel v. Bowman, 62 Iowa 57, 17 N.W. 176), and the rule as thus stated still obtains in this State (Sanders v. O'Callaghan, 111 Iowa 574, 82 N.W. 969). There is some difference of opinion as to the ground of liability at the common law. As put in Quilty v. Battie, 135 N.Y. 201 (32 N.E. 47, 17 L. R. A. 521): "A vicious domestic animal, if permitted to run at large, is a nuisance, and the person who knowingly keeps or harbors it, and thus affords it a place of refuge and protection, is liable for the maintenance of a nuisance and all the damages directly resulting therefrom." Mr. Cooley, in his work on Torts, says that: In Hayes v. Smith, 62 Ohio St. 161 (56 N.E. 879) it is said that the "gist of such an action as this is not the keeping of the dog with knowledge of his dangerous nature, but rather the negligent failure to restrain the animal and to keep him so safely that he may not injure any one who is lawfully at the place." And this appears to be the view of several other courts. Fake v. Addicks, 45 Minn. 37 (47 N.W. 450, 22 Am. St. Rep. 716); De Gray v. Murray, 69 N.J.L. 458 (55 A. 237); Worthen v. Love, 60 Vt. 285 (14 A. 461); Parsons v. Manser, 119 Iowa 88, 93 N.W. 86. For present purposes it is not necessary to determine upon which ground liability in such a case should be based. The liability for such trespasses is imposed not because of ownership, but because of possession and the duty to care for the animals. 2 Cooley on Torts, 690. There was no evidence in this case tending to show knowledge of the evil propensities of the dog, and so at the common law the defendant would not have been liable at all.
But section 2340 of the Code provides that: "It shall be lawful for any person to kill any dog caught in the act of worrying, maiming, or killing any sheep or lamb or other domestic animal or any dog attacking or attempting to bite any person, and the owner shall be liable for all damages done by his dog, except when the party is doing an unlawful act." It will be noted that two changes from the common law are involved in this statute: (1) The "owner" alone is made liable, and (2) proof of scienter is dispensed with. The word "owner" is not of technical significance and is to be construed according to the context and approved usage of the language. Section 48, Code. As employed in this statute it evidently signifies the person to whom the dog legally belongs, for under the modern decisions the dog is recognized as a species of property. See Anson...
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