Zach v. Morningstar, 52003

• Decision Date: 03 May 1966
• Docket Number: No. 52003,52003
• Citation: 142 N.W.2d 440,258 Iowa 1365
• Parties: Ruth Ann ZACH, a minor, by Adolph Zach, her father, natural guardian, and next friend, and Adolph Zach, Individually, Appellees, v. Gilbert E. MORNINGSTAR, Appellant.
• Court: Iowa Supreme Court

Page 440

142 N.W.2d 440

258 Iowa 1365

Ruth Ann ZACH, a minor, by Adolph Zach, her father, natural guardian, and next friend, and Adolph Zach, Individually, Appellees, v. Gilbert E. MORNINGSTAR, Appellant.

No. 52003.

Supreme Court of Iowa.

May 3, 1966.

John D. Randall, John D. Randall, Jr., and John R. Hughes, Cedar Rapids, for appellant.

David F. McGuire and Richard D. Holden, Cedar Rapids, for appellees.

MASON, Justice.

This is an action at law brought under section 351.28, Code, 1962, on behalf of Ruth Ann Zach, a minor, by her father and next friend, seeking damages as the result of injuries to her when attacked and bitten by a dog owned by defendant. Her father, joining in the action, asked in a separate division for past and future medical expenses.

May 8, 1963, Ruth Ann, age four, accompanied her mother and baby sister to defendant's farm home. Earlier in the day defendant's wife had telephoned Mrs. Zach to drive over and pick up some sacks she had for her to make into towels. The Zachs arrived at defendant's farm about 9 a.m. and were met by Mrs. Morningstar followed by the dog. They walked to the house, crossed the porch and entered the kitchen. The dog remained on the porch. After getting the material, Mrs. Zach stayed to visit. Ruth Ann asked to go outside and play. Mrs. Zach knew the dog was outside. The Zachs and Morningstars had been neighbors for some time and visited in each other's homes. About five minutes after Ruth Ann went outside, the women heard a scream. Going out, they found Ruth Ann on the floor of the porch, the dog had its face down on hers and appeared to be biting Ruth Ann. The child was taken to the hospital for treatment where she remained ten days.

I. Plaintiff's original petition was in five divisions, the first four alleging various theories of liability and the fifth asserting the father's claim in his individual capacity. The dog owner and his wife were named as defendants. Before conclusion of the trial, defendant-wife's motion to dismiss as to her was sustained and plaintiffs dismissed Divisions II, III and IV. The divisions asserting liability under section 351.28 and the father's claim were submitted for determination.

Defendant admitted ownership of the dog but denied liability under either division and asserted affirmatively that the proximate cause of the child's injuries was the mother's negligence in not properly supervising and caring for the minor while at defendant's home, permitting the child to leave a place of safety to play with the dog and remaining at the premises after the conclusion of the purpose of the trip. Defendant further asserted provocation of the dog by the minor and that the negligence of the mother is imputable to the father, barring his recovery.

II. Trial was to the court without a jury. The court found the proximate cause of the injury to the child was not the mother's failure to properly control her nor her voluntary exposure to the dog, the mother was not negligent, Ruth Ann was doing nothing unlawful and defendant's dog was the proximate cause of the injury and resulting damages to plaintiffs; that the minor suffered permanent disfigurement for which he awarded judgment of $2500, the father $707.30 for doctors and hospital services and an additional $400 for additional doctor and hospital services which the court found he would be obligated to pay during the child's minority.

III. From the adverse judgments defendant appeals, asserting as error: (1) The trial court's refusal to hold the proximate cause of the injury or at least a contributing cause was the mother's failure to exercise ordinary care for the child's safety; (2) The trial court's awarding of damages to the father for possible future operations and for pain and suffering in connection therewith when said future operations were not reasonably certain.

IV. The evidence will be viewed in the light most favorable to plaintiff--this is also the light most favorable to the trial court's judgment. Its findings of fact have the effect of a special verdict and are binding upon us if supported by substantial evidence. Citation of authority is unnecessary. Rule 344(f) 1, Rules of Civil Procedure. Our question is whether the trial court's findings are supported by substantial evidence, and we will not weigh the evidence or the credibility of the witness. Iowa Mutual Insurance Company v. Combes, 257 Iowa ---, 131 N.W.2d 751, 752.

Section 351.28 provides:

'Liability for damages. The owner of any dog, whether licensed or unlicensed, shall be liable to the party injured for all damages done by said dog, except when the party damaged is doing any unlawful act, directly contributing to said injury. This section shall not apply to any damage done by a dog affected with hydrophobia unless the owner of such dog had reasonable grounds to know that such dog was afflicted with said malady, and by reasonable effort might have prevented the injury.'

V. Defendant contends the father's claim is based on expenses which are regarded as family expenses for which he and the minor's mother are equally liable; the proximate cause of the minor's injury was the mother's negligence; the injury would not have happened but for the mother's negligence which is imputable to plaintiff-father and as a matter of law he is not entitled to recover where the proximate cause of the injury was the negligence and inattention of one who is jointly obligated for the expenses claimed by the father.

VI. Generally questions of negligence, contributory negligence and proximate cause are for the jury; it is only in exceptional cases that they may be decided as a matter of law. Citation of authority is unnecessary. Rule 344(f) 10, R.C.P.

VII. Plaintiffs' witness, Clarence Tessman, testified he was driving by the Morningstar farm at the time of the incident and as he passed defendant's house he saw Ruth Ann standing on the porch facing the road. Defendant's dog was between the door and the little girl, probably right in front of the door. As the little girl turned around and started toward the door, the dog, not more than two feet from the child, just jumped on its hind legs and the girl fell back. He did not see the girl touch the dog when it jumped, but it appeared the dog raised up and...