Netusil v. Novak

• Decision Date: 27 February 1931
• Docket Number: 27449
• Citation: 235 N.W. 335,120 Neb. 751
• Parties: LILLIAN G. NETUSIL, APPELLANT, v. JOHN J. NOVAK, APPELLEE
• Court: Nebraska Supreme Court

235 N.W. 335

120 Neb. 751

LILLIAN G. NETUSIL, APPELLANT, v. JOHN J. NOVAK, APPELLEE

No. 27449

Supreme Court of Nebraska

February 27, 1931

APPEAL from the district court for Douglas county: ARTHUR C THOMSEN, JUDGE. Reversed, with directions.

REVERSED.

Syllabus by the Court.

During the trial of the case, the court overruled a motion to direct a verdict for defendant and submitted the case to the jury. The jury returned a verdict for plaintiff and judgment was entered thereon. A motion for new trial was filed and argued whereupon, at the same term, the court, on its own motion, set aside the verdict of the jury and the judgment and dismissed the action. Held, that the trial court had the right and power to vacate, set aside, amend or correct any judgments or orders made by it at the same term.

Such orders may be made upon the court's own motion as well as upon the motion of counsel for the parties.

The law clearly recognizes the right of the owner of a vicious dog to keep it for the necessary protection of life and property. But as such a dog is inherently dangerous, one exercising the right to keep it must do so at his own risk, and is held strictly liable for any damage resulting to another .

In the case of injury, the gravamen of the action is the knowledge of the owner that the dog has vicious or mischievous propensities.

Liability of an owner or keeper of a dog whose owner knows of its vicious or mischievous propensities is based upon negligence.

There is a liability for damages for physical injuries which are proximately caused by fright and terror produced by one who owes a legal duty to the one injured.

The owner of a dog, known by him to have vicious and mischievous propensities, owes a legal duty to every one to protect them from injury. He especially owes this duty to a traveler passing along the highway adjacent to his premises.

Section 20--1926, Comp. St. 1929, provides that upon reversal the court shall remand the cause to the district court for such judgment as it should have rendered.

In a case such as this, where the trial court sought to correct a supposed error in overruling motion for directed verdict, by vacating verdict and judgment thereon and then by dismissing the action, this court will, upon reversing the judgment of dismissal, if no other error is presented by the record, remand the cause to the district court, with directions that the verdict and judgment be reinstated.

Additional Syllabus by Editorial Staff.

Injury from shock, caused by attack of vicious dog, is actionable, even if not accompanied by bite.

Appeal from District Court, Douglas County; Thomsen, Judge.

Action by Lillian G. Netusil against John J. Novak. Judgment for defendant, and plaintiff appeals.

Reversed and remanded, with directions.

North, Caldwell & Gillogly, for appellant.

Harry B. Fleharty, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.

OPINION

DAY, J.

This is an action for damages against the owner of a dog. The petition alleges that the dog was vicious, which fact was known by the defendant prior to the attack by said dog upon the plaintiff. The defendant's answer denies the allegations of the petition and further avers that the plaintiff's physical condition is not due to any attack or frightening by defendant's dog.

Upon a trial of the case, the court overruled a motion to direct a verdict at the close of all the testimony and submitted the case to the jury. The jury returned a verdict for the plaintiff. A motion for new trial was filed, argued and taken under consideration by the trial judge. Thereupon, the court, on its own motion, set aside the verdict of the jury and the judgment entered thereon, referred back to the motion to direct a verdict and dismissed the case.

In passing, we observe that the procedure followed by the trial court is in line with the modern prevailing tendency toward practicalism which seeks to shorten and to simplify judicial procedure. It is the well-established law of this state, as well as of others, that the trial court has the right and power to vacate, set aside, amend or correct any judgments or orders made by it during the same term. Such orders may be entered upon the court's own motion as well as upon the motion of counsel. Douglas County v. Broadwell, 96 Neb. 682, 148 N.W. 930; Carmony v. Carmony, 112 Neb. 651, 200 N.W. 830; Occidental Building & Loan Ass'n v. Adams, 96 Neb. 454, 148 N.W. 88; Young v. Estate of Young, 103 Neb. 418, 172 N.W. 49; Harris v. State, 24 Neb. 803, 40 N.W. 317; Bradley v. Slater, 58 Neb. 554, 78 N.W. 1069; Winder v. Winder, 86 Neb. 495, 125 N.W. 1095; Zitnik v. Union P. R. Co., 95 Neb. 152, 145 N.W. 344. In this case, the trial court reached the conclusion after a verdict was rendered for plaintiff that its order overruling the motion of defendant for a directed verdict was erroneous. It had the right and power to vacate the judgment and verdict and make an order correcting its supposed error. No good reason suggests itself to us which would prevent a trial judge retracing his steps during the same term to make such orders as seem to him necessary to present a final record free from error. The foregoing action on the part of the trial court was occasioned by its conclusion that as a matter of law no recovery could be had for injuries received as the result of a shock from fright caused by the attack of a dog which did not bite. Had the attack in this case included a bite, there would be no doubt about the right of the plaintiff to recover. In the reported cases are found many glowing tributes to the dog, similar to those enumerated by the learned trial judge in his opinion. In other cases the dog has been stigmatized as a worthless yelping cur. Mindful of the fact that there are dogs and also other dogs, just as there are people and other people, we attempt to retain our judicial poise and decide this case uninfluenced either by the good or bad dogs we have known.

In order to charge one with liability for the acts of a dog, it must of course be established that he is the owner or keeper. It is so established in this case. It then devolves upon the plaintiff to show that the dog was vicious and that the owner knew the dog to be vicious. The law clearly recognizes the right of the owner of a vicious dog to keep it for the necessary protection of life and property. But as such a dog is inherently dangerous, one exercising the right to keep it must do so at his own risk, and is held strictly liable for any damage resulting to another. 1 R. C. L. 1116, sec. 59. In the case of injury, the gravamen of the action is the knowledge of the owner that the dog has vicious or mischievous propensities. Warrick v. Farley, 95 Neb 565, 145 N.W. 1020; Herbert v. Katzberg, 104 Neb. 395, 177 N.W. 650; Melicker v. Sedlacek, 189 Iowa 946, 179 N.W. 197; Domm v. Hollenbeck, 259 Ill. 382, 102 N.E. 782. A statute now quite common makes the owner of a dog the insurer of any damage done by said dog, in which the basis of liability is not the negligence in the manner of keeping and confining the animal, but in keeping him at all. See Wojewoda v. Rybarczyk, 246 Mich. 641, 225 N.W. 555; Reneau v. Brown, 9 La. App. 375, 158 So. 406; Bottcher v. Buck, 265 Mass. 4, 163 N.E. 182; Luick v. Sondrol, 200 Iowa 728, 205 N.W. 331; Miller v. Prough, 203 Mo.App. 413, 221 S.W. 159; Stine v. McShane, 55 N.D. 745, 214 N.W. 906; Silverglade v. Von Rohr, 107 Ohio St. 75, 140 N.E. 669; Pritsker v. Greenwood, 47 R.I. 384, 133 A. 656. There are a few of the cases which discuss statutes abrogating the common-law rule requiring knowledge on the part of the owner. See note, 1 A. L. R. 1113. However, we have not yet such a statute and the common-law rule is still applicable in this state. Liability of an owner or keeper of a dog whose owner knows of its vicious or mischievous propensities is based upon negligence. Did this dog have vicious or...