Forsythe v. Kluckhohn

Citation161 Iowa 267,142 N.W. 225
PartiesFORSYTHE v. KLUCKHOHN.
Decision Date02 July 1913
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from District Court, Plymouth County; David Mould, Judge.

Action at law to recover damages for personal injury. The material facts are stated in the opinion. Judgment for plaintiff, and defendant appeals. Affirmed.Sammis & Bradley, of Le Mars, for appellant.

Nelson Miller and Struble & Struble, all of Le Mars, for appellee.

WEAVER, C. J.

It is the claim of plaintiff that defendant permitted his dog to run at large without being muzzled, contrary to the provisions of an ordinance of the city of Le Mars, where the parties reside, and that while so at large, and while plaintiff was passing along a public street in said city, said dog ran against her seizing hold of her dress, knocking her down, and causing her serious bodily injury. The defendant answers, denying all the material averments of her petition. On trial to a jury verdict was returned in favor of plaintiff for $800, and from the judgment rendered thereon defendant appeals.

The case has once before had the attention of this court. See Forsythe v. Kluckhohn, 150 Iowa, 126, 129 N. W. 739, 33 L. R. A. (N. S.) 163. On the former trial the particulars of the occurrence in question were the subject of dispute. It was the theory of the defense that this dog with one or more other dogs were racing along the street in a playful way, and ran against plaintiff, causing her to fall, but did not attack her or lay hold of her clothing. Upon the evidence as then adduced, the jury while returning a general verdict in plaintiff's favor made a special finding that the dog did not attack or attempt to bite her. On appeal this court reversed the judgment, and ordered a new trial holding that the alleged injury to the plaintiff was not shown to be the direct or natural result of defendant's failure to muzzle his dog. On the second trial testimony by persons having experience in raising and keeping dogs of like breed with the one here in question was admitted to the effect that, when muzzled, such an animal is more subdued, is not so quick or free to run about or engage in play, and is quicker to obey. There was also evidence tending to sustain the plaintiff's allegation that the dog did seize hold of her clothing. In addition to the general verdict for the plaintiff, special findings on interrogatories submitted at the defendant's request were returned as follows:

“Interrogatory 1. Did the defendant's dog at the time and place complained of by the plaintiff attack, bite, or attempt to bite her? Answer. Yes.

Interrogatory 2. Was the fact that defendant's dog was unmuzzled at the time and just prior to the time of the accident complained of the proximate cause of the injuries alleged to have been sustained by the plaintiff? Answer. Yes.”

[1] 1. It is argued on behalf of appellant that plaintiff must recover, if at all, on the theory that “the dog caused the injury complained of by using his teeth in a manner which a muzzle would have prevented,” or that the “dog was running at large in play and ran into plaintiff, and thus, without employing his teeth or any agency of the use of which a muzzle would have deprived him, caused plaintiff to fall.” Concerning this assumed alternative, counsel say there is no testimony in the record that the dog did seize or lay hold of the plaintiff or of her clothing except the story of plaintiff herself, and that her evidence to that effect is unworthy of belief. The plaintiff testified in a direct and positive way that the dog “grabbed hold of me”; “took hold of my dress”; “pulled at my skirts”; “turned me right around, and held to my skirt”; “there was a tear in my skirt afterwards. When they let go of my skirt, I fell off the walk.” On cross-examination, she repeated these statements with added emphasis. These assertions are not directly denied by any eyewitness of the occurrence. Witnesses do testify that the dogs were apparently engaged in a playful chase, that one of them, defendant's dog, ran into the plaintiff, but the witnesses did not see him take hold of the plaintiff or of her clothing. None go so far as to say that the thing stated by the plaintiff did not occur. It needs no citation of the authorities in support of the proposition that under the most familiar and most fundamental rule of the law of jury trials the credibility of plaintiff as a witness and the weight to be given her testimony were for the jury alone. The special findings are to the effect that her story is true. This finding is conclusive upon the court, and must stand unless prejudicial error be found elsewhere in the record calling for a reversal of the judgment below.

[2] 2. Defendant's dog was a “pet bull terrier,” and witnesses claiming experience or expert knowledge of animals of this kind were permitted to testify as to the effect which the wearing of a muzzle has, or is likely to have, upon dogs of that breed. They were also allowed to speak of the disposition and characteristics of such dogs. The admission of this testimony is assigned as error. In our judgment the exception is not well taken. The well-known classification of animals of the same general family into breeds is a recognition of the fact that by breeding, training, and environment for considerable periods of time they develop distinct traits, habits, and characteristics, and we see no reason why these may not be legitimate matters of evidence in cases where their acts and conduct under a given state of circumstances become a matter of dispute.

[3] Nor was there error in the admission of testimony that on former occasions the dog had run against and seized hold of the clothing of other persons. Such evidence was probably not necessary to show notice to defendant of the alleged viciousness of his...

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