Gordan v. Kaufman

• Decision Date: 19 November 1909
• Docket Number: No. 6,560.,6,560.
• Citation: 44 Ind.App. 603,89 N.E. 898
• Parties: GORDAN v. KAUFMAN.
• Court: Indiana Appellate Court

44 Ind.App. 603

89 N.E. 898

GORDAN

v.KAUFMAN.

No. 6,560.

Appellate Court of Indiana, Division No. 1.

Nov. 19, 1909.

Appeal from Circuit Court, Grant County; H. J. Paulin, Judge.

Action by David M. Kaufman against Jesse S. Gordan. From a judgment for plaintiff, defendant appeals. Affirmed.

Simmons & Dailey, for appellant. L. L. Simons and John S. Branyan, for appellee.

MYERS, J.

The appellee recovered judgment against the appellant for personal injuries. The appellant's demurrer to the complaint for want of sufficient facts was overruled. It was alleged in the complaint: “That on and prior to the 8th day of December, 1905, the defendant, residing in the town of Warren, kept a dog, which, as he well knew, was of a fierce and dangerous nature and improper to be allowed to go at large, and which, as he also well knew, was accustomed to attack and bite mankind, yet the defendant wrongfully and negligently allowed his said dog to go at large upon the streets of Warren without being properly secured; that on said date said dog, without any fault on the part of the plaintiff, attacked and bit and wounded plaintiff by biting, lacerating, injuring, and wounding his left leg,” etc. There was an answer in denial, and a jury returned a verdict in favor of the appellee. Appellant's motion for a new trial was overruled. The errors assigned relate to the sufficiency of the complaint for want of facts, and to the overruling of the motion for a new trial. The reasons here argued in support of the motion for a new trial require us to consider the action of the court in refusing to give instruction No. 7 requested by appellant and instructions numbered 8 and 10 given by the court to the jury upon its own motion. A disposition of the questions pertaining to the instructions will dispose of this case.

Instruction No. 7 tendered and refused was as follows: “I instruct you that if you find from the evidence that the defendant had caused said dog to be securely confined by a chain on the day of the injury to the plaintiff, and that said dog had been turned loose on said day, prior to the injury, without the knowledge or consent of the defendant, and while said defendant was absent from his place of business where said dog was so confined, and that, while said dog was so turned loose without the knowledge or consent of the defendant, he attacked and bit the plaintiff, and thereby caused the injury alleged in the complaint, then the defendant would not be responsible for said injury and would not be liable for damages therefor, and your verdict should be for the defendant.” Instruction No. 8 given by the court was as follows: “As already stated, the burden of proof is upon the plaintiff to prove each and all of the material allegations of his complaint by a preponderance of the evidence. One of the material averments of the complaint, as also already stated, is that the defendant kept a dog which, as he well knew, was of a fierce and dangerous nature, and which he well knew was accustomed to attack and bite mankind. I therefore instruct you that if you should find that the dog in question was kept by the defendant, and that said dog was of a fierce and dangerous nature and was accustomed to attack mankind, yet if you further find that the defendant did not know that his said dog was of a fierce and dangerous nature, and did not know that his said dog was accustomed to attack and bite mankind, your verdict should be for the defendant, even though you should find that the plaintiff was bitten by said dog and injured and damaged thereby as alleged in the complaint.” By instruction No. 10 the jury was told: “It is the law that the owner or keeper of a domestic animal which is vicious, and which is prone or accustomed to do violence and to attack and bite mankind, having knowledge of...