Stuber v. Gannon

• Decision Date: 15 May 1896
• Citation: 67 N.W. 105,98 Iowa 228
• Parties: STUBER v. GANNON ET AL.
• Court: Iowa Supreme Court

98 Iowa 228

67 N.W. 105

STUBER

v.GANNON ET AL.

Supreme Court of Iowa.

May 15, 1896.

Appeal from district court, Dallas county; J. H. Henderson, Judge.

Action at law by Priscilla Stuber, next friend, to recover damages for injuries done to one Emma Stuber by a dog alleged to belong to defendants. There was a trial to a jury, which resulted in a verdict for defendants. Plaintiff filed a motion for a new trial, which was sustained by the court, and the defendants appeal. Reversed.

Deemer, J., dissenting.

White & Clarke, for appellants.

Shortley & Harpel, for appellee.

DEEMER, J.

The petition recites facts which, if true, would render the defendants liable at common law for damages done by their dog, and, of necessity, contains statements which would make them liable under section 1485 of the Code of 1873, which, among other things, provides that “the owner shall be liable to the party injured for all damages done by his dog except when the party injured is doing an unlawful act.” Evidence was adduced on the trial upon the theory that the plaintiff must negative contributory negligence on the part of the party injured; and the court instructed the jury, in effect, that if Emma Stuber, by any want of reasonable and ordinary care on her part, in any manner contributed to the injury complained of, plaintiff could not recover. The jury, under these instructions, found for the defendants. Plaintiff's motion for a new trial was based, among other things, upon the ground that the instructions of the court were wrong, with reference to the contributory negligence of the party injured, for the reason that, so far as actual damages are concerned, the rule of contributory negligence does not apply. The court, in ruling upon the motion, made the following of record: “And the court, being fully advised in the premises, sustains said motion, sets aside the verdict of the jury, and grants a new trial, upon the grounds that the court erred in applying the doctrine of contributory negligence to this case; for errors in the instructions given to the jury on the question of contributory negligence, and in submitting that question to the jury. And it is expressly stated that the motion is not sustained on account of the ground that the verdict is not supported by the evidence.” It will thus be seen that the only question presented by this appeal is, was the court in error in holding that the doctrine of contributory negligence did not apply to the case? In order to determine this inquiry, we must first ascertain whether plaintiff's contributory negligence, in any case of this kind, will bar him of recovery; and, second, whether in this particular case the court was in error in instructing as to contributory negligence. As to the first proposition, there seems to be no room for argument, unless we are prepared to overrule the recent case of Gregory v. Woodworth, decided by this court on the 17th day of January, 1895, and reported in 61 N. W. 962. This case is squarely in point. We there held that a petition in an action under the statute before quoted, which did not allege that plaintiff was free from contributory negligence, was demurrable. The writer of this opinion has grave doubts concerning the correctness of the rule there announced, although it is conceded that there is a conflict in the authorities upon the proposition. The only theory on which it can be sustained is that the statute in question is remedial in its nature, and, in effect, does nothing more than dispense with proof of the scienter required in actions at common law; that the action is still predicated upon the negligence of the defendant; and that the ordinary rule denying recovery to one for injuries resulting from his own negligence applies. To sustain the opinion, it must also be found that the purpose of the exception stated in the statute, to wit, “except when the party is doing an unlawful act,” was to limit the right of recovery, and not to extend it. This is the theory on which the cases holding to the doctrine announced in the Gregory Case are decided. See Quimby v. Woodbury, 63 N. H. 370, and Raymond v. Hodgson, 161 Mass. 184, 36 N. E. 791. I am not fully persuaded of the correctness of these decisions. There are a class of actions in tort, not based on negligence, in which defendant's care, or the want of it, is not in issue; in which some direct and positive act of the defendant makes out the cause of action. In such cases plaintiff makes out a prima facie case by proving the defendant's act, and consequent injury. He has no occasion to prove defendant's negligence, nor his own care in the first instance. See Ruter v. Foy, 46 Iowa, 132;Conn v. May, 36 Iowa, 241. It seems to me that this is an action belonging to that class, and that plaintiff was not required to show freedom from contributory negligence. My views upon this question are quite fully presented...