Bigelow v. Saylor

• Decision Date: 13 December 1929
• Docket Number: 39902
• Citation: 228 N.W. 279,209 Iowa 294
• Parties: ZELLA BIGELOW, Appellant, v. U. G. SAYLOR et al., Appellees
• Court: Iowa Supreme Court

228 N.W. 279

209 Iowa 294

ZELLA BIGELOW, Appellant, v. U. G. SAYLOR et al., Appellees

No. 39902

Supreme Court of Iowa, Des Moines

December 13, 1929

Appeal from Linn District Court.--F. L. ANDERSON, Judge.

Action to recover damages for injuries resulting from the plaintiff's being bitten by a dog in the custody of the defendants. The trial court directed a verdict in behalf of the defendants, and the plaintiff appeals.

Reversed.

Otto L Schluter, for appellant.

Ring & Hann, for appellees.

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

OPINION

FAVILLE, J.

The appellant, for the purpose of collecting a bill, went upon the premises occupied by the appellees, and was bitten by the dog in question. She bases her right to recover on the claimed statutory liability of the appellees as "owners" of said dog, within the meaning of the statute. The evidence shows that the dog in question was, in fact, owned by a son of the appellees', who, as we understand from the record, had lived with the appellees in their home. He left there in November of 1927, and the dog continued to remain at the home of the appellees. The evidence shows that he always remained there. The injury occurred March 20, 1928. In the daytime, he was in the yard and the barn and different places, but he never left the premises. Nights, he slept in the house. The appellees took care of him and provided for him during all of said time. The appellees' motion for a directed verdict is predicated upon the theory that the appellant's action was for statutory liability against the appellees as owners, and that it affirmatively appeared of record that they were not in fact the owners of said dog, but merely kept, harbored, and cared for him. The appellees, therefore, contended that their liability, if any, would be a common-law liability, and not a statutory liability.

Section 5421 of the Code, 1927, is as follows:

"The term 'owner' shall, in addition to its ordinary meaning, include any person who keeps or harbors a dog."

Section 5450 of the Code is as follows:

"The owner of any dog, whether licensed or unlicensed, shall be liable to the party injured for all damages done by said dog, except when the party damaged is doing an unlawful act, directly contributing to said injury. This section shall not apply to any damage done by a dog affected with hydrophobia unless the owner of such dog had reasonable grounds to know that such dog was afflicted with said malady, and by reasonable effort might have prevented the injury."

The appellees contend that these sections of the statute are not applicable to the instant case, because of the fact that Section 5421 was originally a part of Chapter 140 of the Acts of the Thirty-ninth General Assembly, and that, as originally enacted in said chapter, it had reference only to the licensing or taxation of dogs, and had no reference to the liability for damages, under Section 5450 of the Code. Appellees' contention is that the including of said two sections in one chapter of the Code, to wit, Chapter 276, did not change the original enactment or extend the definition so as to make it applicable to any other purpose than that of taxation or licensing. The difficulty with the appellees' contention at this point is that they overlook entirely the fact that Chapter 276 in its present form was a reenactment by the general assembly of former legislation. Prior to the enactment of...