Reed v. Harvey

• Decision Date: 15 August 1961
• Docket Number: No. 50240,50240
• Citation: 253 Iowa 10,110 N.W.2d 442
• Parties: Flora REED, Appellee, v. Robert HARVEY and Cora Harvey, Appellants.
• Court: Iowa Supreme Court

Page 442

110 N.W.2d 442

253 Iowa 10

Flora REED, Appellee, v. Robert HARVEY and Cora Harvey, Appellants.

No. 50240.

Supreme Court of Iowa.

Aug. 15, 1961.

Rehearing Denied Oct. 17, 1961.

Kennedy, Kepford, Kelsen & White, Waterloo, for appellants.

James C. Dunbar and Melvin H. Wolf, Waterloo, for appellee.

GARFIELD, Chief Justice.

This is a law action to recover for personal injuries resulting from an attack by defendants' dog. Trial ended in a jury verdict and judgment of $3,344.40 for plaintiff. Defendants have appealed.

Plaintiff is a near neighbor of defendants in Waterloo. About 8:30 a. m. on September 11, 1958, defendants' collie ran into plaintiff's yard with a 20-foot chain around his neck. In an apparent attempt to protect several small children from the dog plaintiff grasped the chain, went to defendants' front steps and called Mrs. Harvey three times. The dog leaped on plaintiff and bit her on her right arm and left leg several times while she was retreating toward her own home. The dog tore her clothes and caused bleeding. Mrs. Harvey told her to go home and call a doctor.

As soon as plaintiff could locate a doctor (about 11:15) she saw Dr. Weyhrauch who treated her wounds that day (Thursday), on the two following days and again on Monday or Tuesday. He then told plaintiff she need not return for further treatment. In February (1959), plaintiff went to a hospital for 15 days when Dr. Diamond, an orthopedic specialist, removed the inner meniscus from the left knee and also a cystic area over an important ligament in the knee. The meniscus was partly torn before removal. Dr. Diamond testifies this operation on the knee left plaintiff with a seven per cent permanent disability.

Other evidence will be referred to later.

I. Defendants' first assigned error is that plaintiff failed to plead a cause of action either by statute or at common law. Plaintiff concedes she did not plead a cause of action at common law since she did not allege defendants were negligent or that she was free from contributory negligence at the time she was attacked. She says that throughout the trial defendants and the court understood she was relying on section 351.28, Code 1958, I.C.A. Defendants in effect conceded in both their printed and oral arguments it was obvious plaintiff was claiming under this statute. So far as material, it provides:

'The owner of any dog * * * 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.'

It is not suggested plaintiff was doing an unlawful act.

Plaintiff's petition does not refer to the quoted section. Defendants contend the petition is fatally defective in this respect. They rely on rule 94, Rules of Civil Procedure, 58 I.C.A., which states: 'Judicial notice; statutes. Matters of which judicial notice is taken need not be stated in any pleading. But a pleading asserting any statute, or a right derived therefrom, shall refer to such statute by plain designation. The court shall judicially notice the statutes of any state, territory or other jurisdiction of the United States so referred to.'

If we assume for the purpose of this case that the second sentence of this rule requires a pleading which asserts a right derived from a statute, although of our own state, to refer to the statute, we think defendants are not entitled to a reversal, under the circumstances here, because of this omission from the petition. Defendants first challenged the sufficiency of the petition in their motion for directed verdict at the close of all the evidence. They made no such motion until then but proceeded as if plaintiff had stated a cause of action under section 351.28.

When a doubtful pleading is attacked by motion, demurrer or, as permitted by rule 72, Rules of Civil Procedure, in the answer, it will be resolved against the pleader. But after issue is joined without raising any 'points of law appearing on the face of the petition' (rule 72), it will be liberally construed in order to effectuate justice between the parties. The pleader will be accorded the advantage of every reasonable intendment, even to implications, regardless of technical objections or informalities. This is the effect of rule 67.

Permitting the introduction of testimony on an issue not specifically pleaded obviates the necessity of its formal presentation. Where, as here, parties proceed without objection to try an issue, even though not presented by the pleadings, it amounts to consent to try such issue and it is then rightfully in the case.

See in support of our holding on defendants' first assigned error Wilson v. Corbin, 241 Iowa 593, 604-606, 41 N.W.2d 702, 708-709; Ashby v. School Township of Liberty, 250 Iowa 1201, 1203-1206, 98 N.W.2d 848, 851-853; Markman v. Hoefer, 252 Iowa 118, 123-134, 106 N.W.2d 59, 63; Federated Mutual I & H Hdwe Co. v. Erickson, 252 Iowa ----, 110 N.W.2d 264, and citations in these precedents.

II. Defendants next contend plaintiff has wholly failed to show proximate causal connection between the dog's attack and the injuries sued upon.

The most serious injury complained of was to plaintiff's left knee upon which the orthopedic specialist, Dr. Diamond, operated in February, 1959. Defendants argue the only evidence of causal connection between the attack by the dog and this injury was Dr. Diamond's who, it is said, merely expressed the opinion the attack could have caused the condition he found in the knee.

At this point defendants' principal reliance is upon our decision in Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 379-383, 101 N.W.2d 167, 170-172, and cases there cited, that 'medical testimony it is possible a given injury was the cause of subsequent disability or 'could have' caused it is insufficient, standing alone, to take such issue to the jury.' Bradshaw's case also points out: 'However, we have held such expert evidence * * * is sufficient to warrant submitting to the jury the issue of proximate cause when coupled with other testimony, nonexpert in nature, that plaintiff was not afflicted with any such condition prior to the accident in question. (citations).'

We think the issue of proximate cause was properly submitted to the jury. In considering this assigned error--and the one next considered--of course it is our duty to view the evidence in the light most favorable to plaintiff. When this is done, Dr. Diamond seems to have expressed the opinion that from the conditions he found in the knee, and the history given him by plaintiff, the attack by the dog caused such conditions--not merely that it could have caused them. Then too nonexpert testimony strengthens the opinion expressed by the doctor.

Dr. Diamond testified without objection to the history plaintiff gave him when she consulted him. 'She said that a few months before there was an attack by a dog and she twisted her knee * * *.' He then expressed the opinion, 'Ordinarily, what provokes this sort of an injury is a twisting of the knee.'

Dr. Diamond made it clear the actual dog bites had nothing to do with the condition of the knee. 'It would be my conclusion that some trauma would be required to cause the tear, that is, some jolt or strain. * * * I would be attributing the injury more to the sprain of the knee and so on in getting away from the dog. * * * It is possible the sprain the patient has undergone could have occurred in some other manner at some other time. I have no way of knowing. I have to rely on what the patient told me.'

On cross-examination of Dr. Diamond defendants sought to show plaintiff's knee condition could have been caused during or before 1955 when she had a ganglion (small tumor) removed from her left foot. The doctor testified a fall could have caused the ganglion. However, there is no evidence of such a fall. The testimony is to the contrary. He went on to say, 'That some fall or twist could possibly have caused the difficulty with this left knee. There is no way of knowing it didn't except the patient's statement the knee was all right, plus one other fact and that (is) * * * if this had existed from 1955 to 1959 when I saw her I think you would have a good deal of arthritic change in this knee.' This seems to say that while the other cause sought to be shown was possible it was quite improbable.

Plaintiff testified she never before fractured or sprained her left leg or had it treated by a doctor and that when she had prior surgery in 1955 she hadn't bumped or fallen or twisted her foot. * * * 'I did not limp before the dog bit me with either the left knee or leg. After that I have limped continuously. * * * My knee started hurting immediately after the dog bit me.' A sister of plaintiff said she limped the day the dog attacked her, soon after the occurrence.

On the whole, the evidence that the dog's attack caused the condition Dr. Diamond found is considerably stronger than the attempted showing of causation in Bradshaw v. Iowa Methodist Hospital, supra, 251 Iowa 375, 379-383, 101 N.W.2d 167, 170-172, relied upon by defendants, where the evidence was held insufficient.

III. Defendants contend a release signed by plaintiff and her husband and delivered to an adjuster for a company with which defendants carried insurance presents an absolute defense. Plaintiffs sought to avoid the effect of the release on the ground it was a result of mutual mistake by plaintiff and the adjuster concerning plaintiff's physical condition at the time the release was executed. The issue was submitted to the jury which found in plaintiff's favor thereon.

So far as pertinent the release provides:

'We, Cecil Reed and Flora Reed, * * * for the sole consideration of $16.42 to us in hand paid, * * * have * * * released and forever discharged * * * Dr. Robert F. Harvey and Cora L. Harvey * * * from any and all claims, demands, rights, and causes of action, of whatsoever kind or...