SanDers v. O'Callaghan

• Decision Date: 22 May 1900
• Citation: 82 N.W. 969,111 Iowa 574
• Parties: SANDERS v. O'CALLAGHAN.
• Court: Iowa Supreme Court

111 Iowa 574

82 N.W. 969

SANDERS

v.O'CALLAGHAN.

Supreme Court of Iowa.

May 22, 1900.

Appeal from district court, Polk county; C. P. Holmes, Judge.

Action to recover damages for injuries resulting from the bite of a dog. There was a trial to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals. Reversed.I. Ross Thompson and Read & Read, for appellant.

Stewart & Cohen, for appellee.

DEEMER, J.

Appellant has filed a motion to strike appellee's amended abstract, because not filed within the time required by our rules. That it was not filed within 10 days after the receipt of appellant's abstract, as required by Rule No. 22, is conceded; but, as appellant did not file his abstract within the time required, and as no prejudice has resulted from the filing of the additional abstract, the motion to strike will be overruled. Clark v. Ellsworth, 104 Iowa, 442, 73 N. W. 1023;Foley v. Association, 102 Iowa, 272, 71 N. W. 236;Galer v. Galer (Iowa) 79 N. W. 257.

2. While driving along one of the streets in the city of Des Moines, plaintiff “had a call of nature,” and concluded to go onto defendant's premises to use his water-closet. Before entering on the premises, she asked permission of a woman, who was between the gate and the house, engaged in washing, and was referred to the housekeeper in the house, who granted the permission asked. She passed on to the closet, meeting defendant's daughter on the way, who spoke to her; used the closet; and as she was returning heard a dog growl. Looking back, she saw a dog leap over a small fence, and start after her as fast as he could come. Plaintiff screamed to the daughter, who was close by, to catch the dog, but, as nothing was done by the girl, the dog sprang at plaintiff's face. Missing its hold, it then seized plaintiff's ankle, and inflicted the injuries of which she complains. As soon as the dog had fastened itself on plaintiff, the daughter caused it to release its hold, but not until it had inflicted very severe injuries on plaintiff's person. When plaintiff saw the dog coming towards her in a threatening manner, she started to run, and was running, and screaming to defendant's daughter to rescue her, from the time she saw the dog coming over the fence. The dog was chained in a barn immediately west of the closet, but, seeing the plaintiff, he broke his chain, and started after her. Plaintiff's visit to the closet was in the daytime, and she did not know of the presence of the dog until it started in pursuit. There is some dispute in the evidence regarding the manner in which plaintiff passed to and from the closet (some of the witnesses say she was running); as to the time when the daughter intervened (she says she did so immediately); and as to the time when the dog first barked (some of the witnesses saying that it was when the plaintiff started to go towards the closet); but the other facts are practically without dispute. Plaintiff was permitted to show, over defendant's objections, that she endured pain and suffered from the injury she received. We think the evidence was competent and proper. The fact was material, and plaintiff was competent to testify regarding the matter. An expert doctor (called on behalf of plaintiff) was asked whether or not a wound made by a dog was more painful to a patient than one made by a clean instrument, and he answered that it was in every case. The witness was competent, and the question was a proper one. He was also asked this question: “What is the effect on the human flesh of laceration by the teeth of a dog, and its general probability of healing rapidly, or leaving poisonous effects?” Objection was made to this, because the witness had not shown himself competent, and for the further reason that the evidence did not show any poisonous effects from the wound in question, or that plaintiff had suffered any damage on account thereof. Before the witness was permitted to answer, his competency was shown, and he said in response that “a wound of this kind--a lacerated woundby a dog or any other animal--is considered by recent surgeons as being altogether different, and is treated differently, from wounds made by clean instruments, or from wounds made by the surgeon's knife, and for the reason there is more tearing of the tissue.” Manifestly, defendant's objection was properly overruled. Another doctor was asked whether such a wound was liable “to get the poison from a dog or other animal in the bite.” Objection was made to this question, and the court, instead of ruling, asked this question: “What is the usual and ordinary effect of a dog bite?” Objection was also lodged against this question, but the objection was overruled. The ruling was clearly right. After the witness had fully answered, defendant moved to strike the answer because not responsive. We need not set it out, for it is so clearly responsive to the interrogatory as to demand no further consideration. Although there may have been no evidence that poison was injected into plaintiff's system through the bite, it was claimed that she had not fully recovered, and that the wound was slow in healing. The evidence of these experts was clearly admissible under these issues. Evidence was also offered for the purpose of showing that the same dog had previously bitten other people. This was objected to as immaterial and irrelevant. Code, § 2340, provides that “the owner of a dog shall be liable to the party injured for all damages done by his dog, except when the party is doing an unlawful act.” While this section was evidently intended to do away with the necessity of proving scienter, still there is no reason for holding that a plaintiff may not prove those things necessary to a right of action at common law. A majority of this court has held that plaintiff in such actions must show his freedom from contributory negligence, in order to recover under this section. Stuber v. Gannon, 98 Iowa, 228, 67 N. W. 105. But see Shultz v. Griffith, 103 Iowa, 150, 72 N. W. 445, 40 L. R. A. 117, and Van Bergen v. Eulberg (Iowa) 82 N. W. 483 (decided at April session). Plaintiff's conduct, and her right to be on the premises, were, therefore, in issue. At common law a person was not entitled to keep a vicious dog on his premises for the purpose of keeping off trespassers, provided they came there in the daytime, and on some innocent mission. See Cooley, Torts (2d Ed.) p. 406; Loomis v. Terry, 17 Wend. 496;Conway v. Grant (Ga.) 13 S. E. 803, 14 L. R. A. 198, and cases cited; Knowles v. Mulder (Mich.) 41 N. W. 896. Proof of facts that would make out a case at common law is not prejudicial error. Marsel v. Bowman, 62 Iowa, 57, 17 N. W. 176;Cameron v. Bryan, 89 Iowa, 214, 56 N. W. 434. It may be, and doubtless is, true that defendant was absolutely liable if plaintiff was doing no unlawful act, and was not guilty of contributory negligence; but no prejudice resulted from proving a case under the theory of qualified liability. No complaint is made of the court's failure to instruct on that theory. Moreover, the defendant testified that he kept the dog chained up in the daytime so that it would not bite people. This...