Shulz v. Griffith

• Decision Date: 12 October 1897
• Citation: 72 N.W. 445,103 Iowa 150
• Parties: O. R. SHULTZ v. A. P. GRIFFITH, Appellant
• Court: Iowa Supreme Court

72 N.W. 445

103 Iowa 150

O. R. SHULTZ v. A. P. GRIFFITH, Appellant

Supreme Court of Iowa, Des Moines

October 12, 1897

Appeal from Bremer District Court.--HON. P. W. BURR, Judge.

ACTION to recover damages alleged to have been caused by plaintiff's being bitten by a dog owned by defendant. Defendant answered, denying generally, and a verdict and judgment were rendered for plaintiff for four hundred dollars. Defendant appeals.

Reversed.

G. W Ruddick for appellant.

Gibson & Dawson for appellee.

OPINION

GIVEN, J.

I.

The following facts are undisputed: Defendant was the keeper of a feed and livery barn open to patronage by the public. The plaintiff was traveling by team, and on the evening of October 2, 1894, he left his team and buggy in care of the defendant, to be kept in said barn over night, for which he paid seventy-five cents. When the team was put in the barn the buggy was left standing near by in the barn yard. Between 8 and half past 8 o'clock that evening plaintiff went into the barn yard for the purpose of seeing that his buggy was put under shelter, and of getting some articles belonging to him, therefrom. While at the buggy he was attacked and bitten on the leg by a dog, which caused a painful wound. The only disputes as to facts are whether defendant's employes at work at the barn knew of plaintiff's presence before he was bitten, and the identity and ownership of the dog, and the extent of the injury. In the view we take of the case, it is not material to plaintiff's right to recover whether his presence was known to defendant's employes or not. We think the jury was warranted in finding, under the instructions, that defendant owned the dog that did the biting, and that plaintiff was injured to the extent returned.

II. We have said the jury was warranted in finding as it did under the instructions, but the question remains whether the court erred in giving or refusing instructions in any of the particulars complained of. The court instructed that "under the laws of the state of Iowa the owner of any dog attacking or attempting to bite any person without fault or negligence upon the part of the person injured shall be liable to the person so injured for all damages done by his dog, except when the party injured is doing an unlawful act." Appellant does not complain of this instruction, and, as will be seen hereafter, could not reasonably do so. Following this, the court instructed to the effect that, if the jury found the facts to be as we have stated them above, then "that his going on said premises for said purpose at the time he states he did go there was not unlawful, and you should not so find it to be." Appellant asked an instruction, which was refused, as follows: "The defendant would be bound to keep the property until the next morning, and, if the plaintiff wished to take possession before that time, he should ask permission of defendant, and if he went upon the defendant's premises to intermeddle with the property so left, without permission of defendant, he would be doing an unlawful act, and your verdict must be for the defendant." The instruction given is correct, and there was no error in refusing that asked. The barn and yard were places to which the patrons of the business were invited to come at seasonable hours. Plaintiff went there before half past 8 o'clock in the evening, and while defendant's son and a hired hand, with a lighted lantern, were at work at the barn. He went there to see that his buggy was put under shelter, and to get some article belonging to him, from the buggy. Surely the time was seasonable, the purpose proper, and, therefore, the act was not unlawful. Though the property was in the care of defendant, plaintiff was not a trespasser in going to it when and for the purpose that he did, without permission, and it is, therefore, immaterial whether defendant's employes knew of his presence or not.

III. The court instructed that "negligence is the failure or omission to do that which an ordinary prudent and cautious man would do under similar or like circumstances." Appellant contends, and correctly so, that this is an incomplete...