Luick v. Sondrol

• Decision Date: 20 October 1925
• Docket Number: 36432
• Citation: 205 N.W. 331,200 Iowa 728
• Parties: CHARLES LUICK, Appellee, v. T. E. SONDROL, Appellant
• Court: Iowa Supreme Court

205 N.W. 331

200 Iowa 728

CHARLES LUICK, Appellee, v. T. E. SONDROL, Appellant

No. 36432

Supreme Court of Iowa, Des Moines

October 20, 1925

Appeal from Cerro Gordo District Court.--C. H. KELLEY, Judge.

ACTION for damages for personal injuries sustained by plaintiff by reason of the fact that the horse upon which he was riding had been frightened by defendant's dog and caused to slip and fall upon the plaintiff. The case was submitted to a jury, which returned a verdict in favor of the plaintiff. The defendant appeals.

Reversed.

Senneff Bliss, Witwer & Senneff, for appellant.

E. B Stillman and Blythe, Markley, Rule & Smith, for appellee.

MORLING J. FAVILLE, C. J., and EVANS and ALBERT, JJ., concur.

OPINION

MORLING, J.

Plaintiff 's testimony, in substance, is that, while he was riding an unshod horse along a paved street, defendant's dog barked at and frightened the horse; that the horse jumped, and fell on the plaintiff, breaking the plaintiff's leg. There was evidence that the pavement was wet and slippery, and that the horse's feet slipped, and there was evidence tending to show that the dog frequently ran out, and chased and barked at passing horses. At the close of the evidence, the plaintiff withdrew all claims of common-law liability and rested his case upon Section 2340, Code Supplement, 1913.

The court gave the following instructions:

"4. Under the laws of this state it is lawful for any person to kill any dog caught in the act of worrying, maiming, or killing any sheep or lamb or any other domestic animal, or any dog attacking or attempting to bite any person; and the owner is liable to the party injured for all damages done except when the party injured is doing an unlawful act. In this case plaintiff at said time was not doing an unlawful act. The question to be determined by you is whether or not the defendant's dog did anything with respect to the plaintiff, or the horse upon which plaintiff was riding, which under the law would justify the killing of the dog. Any person who owns, harbors, or keeps a dog is the owner thereof, within the meaning of the law. If you find, from the weight or preponderance of the evidence introduced upon the trial, that defendant's dog was worrying said horse, or was doing any acts which under the law would justify the killing of the dog, and that such acts of the dog caused plaintiff's horse to fall, and that the proximate cause of the injury of which plaintiff complains was such acts on the part of the dog, then your verdict should be for the plaintiff. If, however, you fail to so find, then plaintiff is not entitled to recover in this action, and in that event your verdict should be for the defendant. In determining the question as to the acts of defendant's dog at the time in question, if any, you have a right to take into consideration the habits, temperament, and conduct of said dog prior and subsequent to plaintiff's injury, as same is disclosed by the evidence before you. 'To worry' means 'to harass, to fret, to vex, to tease or annoy.'"

"6. The defendant cannot be held liable in this case simply because the dog in question appeared upon the public street, as, under the law, dogs are free commoners, and have a right to be and appear upon the public street, if they behave properly; and the defendant would not be liable to plaintiff even though plaintiff's horse became frightened at the dog and fell and broke plaintiff's leg, unless you find that the dog was in the act of attacking or worrying said horse."

The plaintiff is not altogether clear and consistent in his contentions respecting the law governing this case. We think, however, that the instructions referred to are erroneous.

I. In the first place, though the point is not made in argument, and the instruction in this respect may have been without prejudice, in order that there may be no misapprehension we call attention to Alexander v. Crosby, 143 Iowa 50, 119 N.W. 717, which holds that, while one who harbors a dog may be liable at common law, statutory liability rests only on the owner.

II. We think the instructions here are open to the objection that they are misleading. The plaintiff's testimony is that:

"This dog came out kind of from behind like, and jumped and barked at the same time, and the horse fell on me, and I fell on my side. The horse jumped up, and the dog made a couple of lunges, and I hollered at him and kicked him, and he made for the horse. * * * He came out and made one jump and barked, and the horse fell. * * * When I first saw him, I was on the ground, and he was trying to bite the horse."

The only other eyewitness, Becker, says that plaintiff "was going down the street on horseback, and the pavement...