Terpstra v. Schinkel

• Decision Date: 09 January 1944
• Docket Number: 46544.
• Citation: Terpstra v. Schinkel, 235 Iowa 547, 17 N.W.2d 106 (Iowa 1944)
• Parties: TERPSTRA v. SCHINKEL.
• Court: Iowa Supreme Court

17 N.W.2d 106

235 Iowa 547

TERPSTRA v. SCHINKEL.

No. 46544.

Supreme Court of Iowa

January 9, 1944

H S. Life, of Oskaloosa, for appellant.

Lake M. Crookham, of Oskaloosa, for appellee.

MILLER Justice.

On March 31 1943, plaintiff filed a petition which, as amended, asserted that, on October 3, 1942, defendant's horse, then known to be afflicted with rabies, broke out of its enclosure, went upon the property of plaintiff, injured plaintiff and damaged his personal property, specified as a road trailer; defendant was negligent in refusing to kill said horse and in failing to confine it; plaintiff was free from contributory negligence.The prayer was for damages in the sum of $2500 and costs.On April 24, 1943, defendant filed an answer which was a general denial.

On October 21, 1943, the court granted plaintiff leave to amend his petition and simultaneously plaintiff filed an amendment thereto alleging that all animals are required by law to be restrained, that the owner thereof is liable for damages caused by their trespassing on the property of others; that defendant's horse attacked three of plaintiff's horses causing damage of $25 to one of them, loss of use of the other two for 21 days at $2.50 per day, and necessitating vaccination of the three horses at an expense of $17.On the next day, defendant moved to strike from said amendment the allegations above summarized, asserting that 'defendant has filed his answer to the said cause of action, that the issues were wholly made up, that the cause of action was set for trial for the 22d day of October, 1943 and was, by agreement, continued until the 25th day of October, 1943, and that the said facts and allegations which the defendant has moved to strike do state and constitute an entirely new cause of action, and entirely new claim for damages, and should be therefore stricken from the said amended petition.'The motion to strike was sustained forthwith.

On October 25, 1943, defendant filed an answer which admitted that his horse broke out of an inclosure and went onto plaintiff's land but specifically denied that defendant was negligent or that plaintiff was free from contributory negligence.On the same day the trial was had to the court without a jury.

Dr. Sinkler a veterinarian, testified that, early in October, 1942(October 2d), he met defendant on the road.Defendant asked him to examine his horse, stating, 'There is something wrong with this horse, it has been chasing my hogs and cattle around the yard all night.'Dr. Sinkler examined the horse and stated: 'I suspect this horse of having rabies.'He told defendant that he better get the horse unhitched and get it in a tight stall, get a log chain around its neck, make it secure and keep everything away from it.When the doctor passed defendant's place later in the day, the horse was not shackled or confined but was turned out in the barn lot.He told defendant's wife that the horse ought to be tied up or locked up in a tight box stall.The next day the doctor was called out to defendant's place to destroy the horse.It was loose but was finally cornered and shot.It was afflicted with rabies.On cross-examination, the doctor explained the symptoms of rabies and why he was of the opinion that this horse was so diseased.

August Blunk testified that he was present (October 2d) and heard Dr. Sinkler tell defendant that the horse had rabies.

W. S. Utterback testified that in October (October 3, 1942)he saw two men trying to get a horse out of the pasture across the road from plaintiff's house.They finally got it rounded up.The horse was sick, it was frothing at the mouth.A horse that was with it was pretty badly chewed up.The sick horse ran up to plaintiff's team, chewed on their necks.Utterback warned plaintiff's children to get in the house.Utterback left because he was afraid of the sick horse.

Plaintiff testified that at about 10 A. M., October 3, 1942, he and his son were driving a team with a load of corn fodder on his wagon trailer.As they turned into his yard, W. S. Utterback was there waiting for him.Some people in plaintiff's pasture across the road (defendant and his brother) called to him to open the gate to let a horse out.Plaintiff opened the gate and they chased the horse through it.One of plaintiff's horses was with defendant's horse.Defendant's horse was frothing at the mouth, acted mad or crazy, it attacked plaintiff's team, bit them.Defendant and his brother said that the horse was crazy, wasn't feeling right.They got the horse away from the the team and into the barn but it burst the door open.They finally caught it, tied it to plaintiff's road trailer to try to lead it home, but the horse pushed the trailer into the ditch, tore the box off, broke several boards, caused the team to break the tongue.The amount of the damage to the wagon trailer was $30.93.

Plaintiff further testified that defendant's horse broke loose from the wagon and ran back into his yard, then into his timber pasture.He tried to help round it up.It would stand with its head down, blood and forth running out of its mouth, like it was asleep.Then it would suddenly start charging about.During a quiescent spell defendant and his brother got a halter on it but it broke away from them.They then got a rope onto its halter.Plaintiff led it.It led like a gentle horse for about 150 feet, then started to run in a circle around a tree.Plaintiff held onto the rope.It stopped, then took a notion to go on.They led it down the road a ways.Then it took another spell and got away from plaintiff, ran clear home.They got it into defendant's yard.Defendant's wife came out and said: 'You were advised to kill that horse and I begged you to all night.Will you shoot it now?'Defendant said: 'I can't shoot a good horse like that, I will try and get it in the barn.'The horse broke through the gates and a fence and into a pasture.They went after it.They had another rope 15 or 20 feet long they were trying to tie on to the halter rope so they could tie him down.Plaintiff crept up close behind him; as he reached to pick up the rope, the horse woke up and gave plaintiff a big kick; one foot hit him on the elbow and one on the shoulder.Defendant said: 'This is the end of it.I don't want anything more to do with him; someone else can kill him.'Plaintiff was sick and laid down.Defendant said: 'I am going home.I think you had better go to a doctor.I have been taking treatment for rabies.I have to go 14 miles every day.'

Plaintiff testified that he went home.Dr. Wilcox attended him.His arm was bruised.It was 30 days before he could straighten it out.It was swollen up tight at first, very painful.He hired a man to help him for about 90 days at $5 a day, paid him $45.Plaintiff was present when the horse was shot on the afternoon of October 3d; he was returning from the doctor's office.

Plaintiff offered to prove that he was put to expense of $17 to vaccinate his horses, had to confine two of his horses for 21 days, that the value of the use of the team was $2.50 per day, that the third horse's value was reduced $25.The offers were objected to because irrelevant under the issues of the case.The objections were sustained and the evidence was excluded.

At the close of plaintiff's evidence, the defendant moved for judgment on two grounds: (1) That there was no evidence that defendant was negligent in permitting his horse to escape; (2) that, under the record, plaintiff had full knowledge of the disposition and habits of defendant's horse, was a mere volunteer, voluntarily assumed the risk of injury and was guilty of contributory negligence.The court held that plaintiff had the same knowledge of the disposition of the animal as defendant, and, when he was kicked by the horse, he was guilty of contributory negligence in attempting to take hold of the rope; what he did was done voluntarily and was not attributable to defendant.The motion was sustained, judgment was entered accordingly, and plaintiff appeals, asserting three assignments of error.

I.The first assignment of error challenges the court's ruling on defendant's motion to strike certain allegations from plaintiff's amendment to his petition.Reliance is had on Sections 11182and11221, of the Code, 1939, and Rules 68,88, and90 of the Rules of Civil Procedure.The Sections of the Code are not applicable.While the action was commenced before the effective date of the Rules of Civil Procedure(July 4, 1943), the amendment was filed thereafter and, under Paragraph (b) of Rule 1, the Rules were applicable to defendant's motion to strike and to the questions raised therein.

Paragraph (d) of Rule 1 provides:

'After these Rules take effect courts and litigation shall no longer be governed by the statutes listed in column 1 of the Table appended to these Rules as Appendix I, and the practice and procedure shall no longer be in accordance therewith.'

Both Sections 11182and11221 of the Code, 1939, are listed in Column 1 of the aforesaid Appendix I, so that our practice and procedure is no longer in accordance therewith.Both have been expressly repealed by the Rules of Civil Procedure pursuant to Chapter 311, Acts of the 49th G. A.

Rule 88 provides in part...