Le Mars Mut. Ins. Co. of Iowa v. Bonnecroy

• Decision Date: 15 April 1981
• Docket Number: No. 64866,64866
• Citation: 304 N.W.2d 422
• Parties: LE MARS MUTUAL INSURANCE COMPANY OF IOWA, Appellant, v. Robert BONNECROY, Appellee.
• Court: Iowa Supreme Court

Page 422

304 N.W.2d 422

LE MARS MUTUAL INSURANCE COMPANY OF IOWA, Appellant, v. Robert BONNECROY, Appellee.

No. 64866.

Supreme Court of Iowa.

April 15, 1981.

Terry Huitink, Ireton, for appellant.

R. J. Shea of Smith, Grigg & Shea, Primghar, for appellee.

Considered by HARRIS, P. J., and ALLBEE, McGIVERIN, LARSON, and SCHULTZ, JJ.

SCHULTZ, Justice.

The sole issue involved in this appeal is whether section 351.28, The Code 1977, establishes liability for a dog owner for damage caused by the nonmischievous, nonvicious acts of a dog. This issue arose from an accident involving an automobile owned by Henry and Susan Bents and a dog owned by the appellee, Robert Bonnecroy. The appellant, Le Mars Mutual Insurance Company of Iowa, paid the Bents' insurance claim for damage done to their automobile and sued Bonnecroy. The trial court determined that liability attaches to a dog owner only when the dog has done a mischievous or vicious act and denied Le Mars's claim. We conclude that section 351.28 imposes strict liability for all damages caused by a dog, and we reverse the trial court.

The facts were stipulated before the trial court and are not in dispute. On November 11, 1978, Susan Bents was driving the family automobile on a county highway immediately adjacent to the farmstead of Robert Bonnecroy. As Bents was passing the farmstead, Bonnecroy's adult male dalmation dog was crossing the roadway. A collision occurred between the Bents' vehicle and the dog. The vehicle went in the ditch and was totally demolished. Bonnecroy was not negligent in allowing his dog to be on the roadway, and Bents was not committing an unlawful act. Le Mars Mutual Insurance Company of Iowa, under the terms of its insurance contract with Henry and Susan Bents, paid them for their loss and is the real party in interest in this matter.

The fighting issue in this appeal concerns the types of acts by a dog that will trigger liability under section 351.28. Le Mars contends that any affirmative act that causes damage is sufficient to establish liability. Bonnecroy maintains that a dog's innocent acts do not result in liability. He claims that only mischievous or vicious acts, as specifically set out in section 351.27, The Code 1977, impose liability.

Section 351.27 provides the right to kill a licensed dog:

It shall be lawful for any person to kill a dog, licensed and wearing a collar with license tag attached, when such dog is caught in the act of worrying, chasing, maiming, or killing any domestic animal or fowl, or when such dog is attacking or attempting to bite a person.

Section 351.28 imposes liability for damages caused by a dog:

The owner of any dog, whether licensed or unlicensed, shall be liable to the party injured for all damages done by said dog, except when the party damaged is doing an unlawful act, directly contributing to said injury. This section shall not apply to any damage done by a dog affected with hydrophobia unless the owner of such dog had reasonable grounds to know that such dog was afflicted with said malady, and by reasonable effort might have prevented the injury.

These statutes were enacted in 1924 pursuant to an extensive code revision. See H.F. 71, 40th G.A., Extra Sess. §§ 82-83 (1923-1924).

Le Mars claims the trial court erred by ignoring the plain language of section 351.28. It argues that the legislature meant just what it said when it enacted the statute, and the plain meaning of the language imposes liability when an injured party establishes the ownership of the dog and that it caused the injury at issue. Bonnecroy calls our attention to the legislative history of sections 351.27 and .28, and the case law decided thereunder, and points out that sections 351.27 and .28 were originally contained in one statute. He maintains that the legislature merely divided that statute into two parts using substantially the same language, and that the separation of the right to kill provision and the right to collect damages provision did not change the meaning of the statute or the case law decided thereunder. Bonnecroy also relies on the fact that the 1924 enactment of sections 351.27 and .28 was the result of a massive code revision, and that the preamble to H.F. 71 did not contain any language expressing an intent to change the original statute.

Thus, the parties disagree as to the effect of the 1924 legislation. Although section 351.28 has not been subsequently amended, we have never interpreted that provision in a situation in which the dog was neither attacking a person nor interfering with livestock. We now approach that task, turning first to rules of statutory construction.

Our ultimate goal in interpreting statutes is to determine legislative intent. In this endeavor we are aided by certain principles of statutory construction. We consider the language used in the statute, the objects sought to be accomplished, the evils sought to be remedied, and place a reasonable construction on the statute which will best effectuate its purpose. Crow v. Shaeffer, 199 N.W.2d 45, 47 (Iowa 1972). If a revised statute is ambiguous or susceptible of two constructions, reference may be made to the prior statute for the purpose of ascertaining intent. Hanover Insurance Co. v. Alamo Motel, 264 N.W.2d 774, 778 (Iowa 1978). But mere differences in words or arrangement should not generate an inference of legislative intent to change the former rule. Mowrey v. Schulz, 230 Iowa 102, 105, 296 N.W. 822, 823-24 (1941). A revision will not be construed as altering a particular statute absent a clear, unmistakable legislative intent. Kelly v. Brewer, 239 N.W.2d 109, 114 (Iowa 1976). However, legislative history cannot be used to defeat the plain words of a statute. Grain Processing Corp. v. Train, 407 F.Supp. 96, 103 (S.D.Iowa 1976).

Rules of statutory construction are to be resorted to only when the terms of the statute are ambiguous. Heins v. City of Cedar Rapids, 231 N.W.2d 16, 18 (Iowa 1975). Precise and unambiguous language is given its plain and rational meaning as used in conjunction with the subject considered. Maguire v. Fulton, 179 N.W.2d 508, 510 (Iowa 1970). Thus, it is not for the court to speculate as to the probable legislative intent apart from the wording used in the statute. State v. Brustkern, 170 N.W.2d 389, 392 (Iowa 1969). The court must look to what the legislature said rather than what it should or might have said. Iowa R.App.P. 14(f)(13).

Although we feel that section 351.28 is clear and unambiguous, we will examine Bonnecroy's claims that our case law prior to the 1924 revision, interpreting the similar language contained in the predecessors of sections 351.27 and .28, limited liability to the acts specified in section 351.27.

Bonnecroy correctly asserts that our case law prior to 1924, interpreting the predecessors of sections 351.27 and .28, limited liability to the acts specified in section 351.27. The right to kill and liability statute was originally enacted as 9th G.A., Reg.Sess., ch. 76, § 9 (1862), which provided:

It shall be lawful for any person to kill any dog caught in the act of worrying, maiming or killing any sheep or lambs, or other domestic animal, or any dog attacking or attempting to bite any person outside of the inclosure of the owner, and the owner shall be liable to the party injured for all damages done by his dog.

This provision remained substantially the same until it was divided into two parts by the 1924 code revision. ¹ Our cases under the provision held dog owners absolutely liable regardless of whether or not the owner was negligent or had knowledge of the dog's vicious propensity. Puls v. Powelson, 142 Iowa 604, 606, 121 N.W. 1, 1 (1909). The only defenses available were those provided by the statute, and contributory negligence was not a defense. See Van Bergen v. Eulberg, 111 Iowa 139, 139, 82 N.W. 483, 483 (1900).

However, absolute liability was limited to situations in which a dog could lawfully be killed under the statute: for worrying, maiming, or killing a domestic animal; and for attacking or attempting to bite a person. Thus, a dog owner was not liable when a team of horses ran away after his dog bit at their heels; the jury was properly instructed to determine whether or not the dog was in the act of worrying or maiming a domestic animal which justified the killing of the dog under the statute. Miles v. Schrunk, 139 Iowa 563, 566-69, 117 N.W. 971, 973 (1908). Likewise, when a pedestrian was tripped by a dog that was not attacking or biting, the absolute liability provisions were held not applicable. Brown v. Moyer, 186 Iowa 1322, 1326, 171 N.W. 297, 299 (1919). Thus, prior to the legislative revision in 1924, the liability placed on the owner of a dog was limited to situations in which the dog could have been legally killed.

In 1919 the legislature created a code commission to revise the code. 38th G.A., Reg.Sess., ch. 50, § 4 (1919). The commission interpreted its duties to be:

1. Compile all the existing statutory law of the state of a permanent and general nature into one volume.

2. Rearrange, revise, and rewrite such portions of the above compilation with such modifications and additions, as were deemed necessary in order to simplify, clarify, and reduce the body of law into one harmonious whole.

Code Revision Bills, Introduction (1923)(emphasis added). It is apparent from the italicized language that the code commission had authority to make modifications and additions to then-existing statutes. We must determine whether the legislature, by adopting the revised statutes at issue, intended to modify the liability formerly imposed on dog owners.

The enactment of what are now sections 351.27 and .28 repealed section 1851, The Code 1919, which provided:

It shall be lawful for any person to kill any dog caught in the act of worrying, maiming or killing any sheep or lamb, or other domestic animal, or any dog attacking or attempting to bite any...