Nepsha v. Wozniak, 17987

• Decision Date: 08 June 1950
• Docket Number: No. 17987,17987
• Citation: 92 N.E.2d 734,120 Ind.App. 362
• Court: Indiana Appellate Court
• Parties: NEPSHA et al. v. WOZNIAK.

Page 734

92 N.E.2d 734

120 Ind.App. 362

NEPSHA et al. v. WOZNIAK.

No. 17987.

Appellate Court of Indiana, in Banc.

June 8, 1950.

Draper & Eichhorn, Gary, for appellants.

Louis C. Holland, Gary, for appellee.

CRUMPACKER, Justice.

The appellants are the owners and operators of a tavern, known as the Central Cafe, in the city of Gary, Indiana, in which the public is invited to eat and drink. For that purpose the appellee repaired to the barroom of said tavern on the evening of January 17, 1948, where, sometime after midnight, she was bitten by a dog belonging to the appellants and harbored in said room without physical restraint. She brought this suit to recover resulting damages and the jury returned a verdict in her favor in the sum of $1250 upon which judgment was duly entered.

Said verdict and judgment are predicated upon a complaint the gravamen of which is that at the time she was so bitten there was an ordinance in full force and effect in the city of Gary which provides that: 'No owner or keeper of any dog shall permit such dog to run at large at any time.' That notwithstanding said ordinance the appellants kept and harbored a vicious and ferocious dog which they permitted to run at large in a public place, to-wit, said tavern, well knowing said dog's ferociousness and propensity to attack and bite mankind.

In construing the above ordinance and its applicability to the present facts the court instructed the jury as follows:

'The Ordinance imposes upon the owner or keeper of a dog the safe keeping thereof and to prevent it from running at large in a public place. A public place is a business place where the public is invited to do business therein of the character conducted by the owner of said business in that part of the business to which the public is invited.

'This Ordinance imposes upon the keeper of a dog the duty to prevent it from doing mischief or biting one in its place of business, in that part of the business to which the public is invited, as well as to restrain his dog in such a way and under such condition as to prevent said dog from being loose and unrestrained in the business part of said business.

'If you find from a fair preponderance of all the evidence herein that the dog in question was unrestrained and at large in that part of the Central Cafe to which the public was invited and had a right to be there and the plaintiff was therein and was bitten by said dog without fault on her part, then your verdict should be for the plaintiff on this point.'

The appellants objected to this instruction for many reasons only two of which we need consider. They say it is highly mandatory and completely ignores the element of proximate cause. The appellee contends that, even so, other instructions, given at the appellants' request, completely and accurately defined proximate cause and advised the jury that proof thereof was necessary in order to warrant a verdict in the appellee's favor. That the instruction under consideration is mandatory there can be no doubt. It enumerates certain ultimate facts and directs a verdict in the event a jury considers such facts established by the evidence. The gist or foundation of the appellee's right to recover in this case is negligence on the part of the appellants. To be actionable the negligence complained of must have been the proximate cause of the event causing the appellee's injuries. This is the statement of an elementary principle of the law which no one will dispute even in the absence of cited authority. Proof of proximate cause was just as essential to the appellee's case as proof of the appellants' negligence. The instruction omits all reference to proximate cause and in effect tells the jury that if it finds that the appellants conducted themselves in the manner therein described it should return a verdict for the appellee regardless of whether or not such conduct was the proximate cause of her injury.

While it is true that the jury was properly informed as to the law of proximate cause by other instructions and it is not necessary for the court...