O'Harra v. Miller

• Decision Date: 09 October 1884
• Parties: O'HARRA v. MILLER
• Court: Iowa Supreme Court

20 N.W. 760

64 Iowa 462

O'HARRA v. MILLER

Supreme Court of Iowa, Davenport

October 9, 1884

Appeal from Polk Circuit Court.

ACTION to recover for personal injuries sustained by plaintiff, by reason of having been bitten by a dog owned by defendant. There was a judgment on a verdict for plaintiff. Defendant appeals.

AFFIRMED.

Phillips & Conrad, for appellant.

D Donovan, for appellee.

OPINION

BECK, J.

I.

Code section 1485, imposes liability upon the owners of dogs for all injuries done by them. The court, in the third instruction, as applicable to the evidence touching defendant's ownership of the dog by which plaintiff was bitten, directed the jury 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. If the dog was only casually upon his premises, and was not being harbored by defendant as owners usually harbor their dogs, then he was not the owner. In determining how this was at the time of the alleged attack, you will consider the defendant's former treatment of the dog, his declarations concerning him, and the habit of the dog as to staying at the defendant's place."

This instruction is made the ground of complaint by defendant. We regard it as correct. The possession of the dog, as of other property, and its treatment as owners of dogs usually treat them, together with declarations of ownership, would surely establish the fact that the dog belonged to the defendant. We can hardly imagine more satisfactory evidence of ownership. The ordinary conduct of the dog in staying at defendant's place would tend to show that plaintiff regarded the animal as his own property. This is what is meant by the expression of the instruction, "the habits of the dog as to staying at defendant's place."

II. The fifth instruction is also the subject of complaint by defendant. After directing the jury that they should regard the intelligence, memory, interest, relations and feelings towards the parties, and other proper matters, in order to determine the credibility of the witnesses, they could, if they believed any witness had willfully testified falsely in regard to any material matter, disregard his whole testimony. The last part of the instruction is objected to on the ground that the testimony of no witness could be brought within its meaning. It is not claimed that the instruction is not correct, but that there is no evidence to which it is applicable. We think...