Holt v. Myers

• Decision Date: 29 November 1910
• Docket Number: No. 7,096.,7,096.
• Citation: 47 Ind.App. 118,93 N.E. 31
• Parties: HOLT v. MYERS.
• Court: Indiana Appellate Court

47 Ind.App. 118

93 N.E. 31

HOLT

v.MYERS.

No. 7,096.^d1

Appellate Court of Indiana, Division No. 2.

Nov. 29, 1910.

Appeal from Circuit Court, Hancock County; R. L. Mason, Judge.

Action for injuries by Sterling R. Holt against Fred Myers. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 43 Ind. App. 538, 88 N. E. 80.

Kealing & Hugg, for appellant. E. M. Hornaday, for appellee.

COMSTOCK, J.

Appellee sued appellant to recover damages for injuries alleged to have been inflicted upon him by a vicious dog owned by appellant. The cause was put at issue by general denial to the amended complaint. The jury to which the cause was submitted returned a verdict in favor of appellee for $300. Appellant filed his motion for a new trial, which was overruled upon appellee remitting $150 of the verdict, and judgment rendered against the appellant for $150, and costs.

The only error relied upon for reversal is the action of the court in overruling appellant's motion for a new trial, and, of the reasons therefor, only that the court erred in giving instructions 9, 11 and 12, of its own motion, are discussed. So much of said instructions as follows will suffice to make clear appellant's claim. Said ninth instruction reads: “Before the plaintiff is entitled to recover, the evidence must show by a fair preponderance that the defendant kept a vicious dog at his place, which he permitted to run at large, and on the public highway near his place, and that he knew, or should have known by the exercise of reasonable care, that said dog was vicious and likely to attack and injure persons while passing along the public highway. ***” Said eleventh instruction reads: “If you find from a preponderance of all the evidence that the defendant kept a dog which had a propensity to bite mankind, and which fact was known to the defendant, or should have been known by the exercise of reasonable care, then it was his duty to keep said dog confined, and, if he failed to do so, and through such failure plaintiff was damaged, then they should find for the plaintiff,” etc. The twelfth reads: “The burden of proof is upon the plaintiff to prove to your satisfaction by a fair preponderance of the evidence that the defendant knew, or should have known by the exercise of reasonable care, that the dog alleged to have injured plaintiff had bitten or attacked others prior to the time,” etc. The words italicised constitute the alleged error.

It is claimed that the court erred in each of these instructions as placing upon the appellant a greater degree of care than the law requires; that they...