Burch v. Lowary

• Decision Date: 23 October 1906
• Citation: 109 N.W. 282,131 Iowa 719
• Parties: FELITIA BURCH, Appellee, v. EMMA LOWARY, Appellant
• Court: Iowa Supreme Court

109 N.W. 282

131 Iowa 719

FELITIA BURCH, Appellee, v. EMMA LOWARY, Appellant

Supreme Court of Iowa, Des Moines

October 23, 1906

Appeal from Taylor District Court.--HON. H. K. EVANS, Judge.

Reversed.

William M. Jackson, for appellant.

Crum Jaqua & Crum, and Maxwell & Maxwell, for appellee.

OPINION

THE opinion sufficiently states the case.From a judgment in favor of plaintiff, the defendant appeals.--Reversed.

BISHOP J.

The defendant is a married woman, and, at the time in question, resided with her husband and family on a farm; the legal title to which stood in her name.Two dogs were kept on the farm, and as plaintiff was driving by on the public road said dogs ran out, and, by their barking, frightened her horses, causing them to run away.As the horses ran, the buggy was tipped over and, plaintiff being thereby thrown to the ground, she sustained the injuries of which she complains.

The trial was proceeded with on the theory that the case came within the statute of this state (Code, section 2340), which provides, following other matters: "And the owner shall be liable to the party injured, for the damages done by the dog," etc.There was no evidence that the dogs were vicious in character.At most it was shown that on several occasions they had been known to run out and bark at passing teams; a propensity of which defendant declares she had no knowledge, and counsel for appellee do not contend otherwise.That the dogs were kept on the premises by permission of defendant is not denied.In a motion for a directed verdict, and by requests for instructions, the defendant contended that, as she was not the owner of the dogs, she could not be made liable under the circumstances shown for their depredations, notwithstanding she permitted such dogs to remain on the premises.The motion was overruled, and the requests refused.In the submission of the case, the jury was told that, under the laws of this State, the owner of any dog is liable to the party injured for the actual damages done by such dog."And, on the question of ownership of the dogs, you are instructed that, if the defendant had the dogs in question in her possession, and was harboring them on her premises, as owners usually do with their dogs, then she is the owner within the meaning of the law.In determining this matter at the time of the alleged attack, you will consider the defendant's former treatment of the dogs, her declaration, if any, concerning them, and the habits of the dogs as to staying at defendant's place."

We concede to counsel for appellee that the word "owner," as occurring in the statute, is not to be taken in the technical sense in which it is commonly used.Thus, in O'Harra v. Miller, 64 Iowa 462, 20 N.W. 760, we said "that if the defendant had the dog in his possession, and was harboring him on his premises, as owners usually do with their dogs, then he is the owner within the meaning of the law."And to the same effect is Trumble v. Happy, 114 Iowa 624, 87 N.W. 678.

The case before us, then, presents the simple and sole question whether a married woman...