131 Iowa 719 | Iowa | 1906
The defendant is a married woman, and, at the time in question, resided with her husband and family on a farm; the legal title to which stood in her name. Two dogs were kept on the farm, and as plaintiff was driving by on the public road said dogs ran out, and, by their barking, frightened her horses, causing them to run away. As the horses ran, the buggy was tipped over and, plaintiff being thereby thrown to the ground, she sustained the injuries of which she complains.
The trial was proceeded with on the theory that the case came within the statute of this state (Code, section 2340), which provides, following other matters: “And the owner shall be liable to the party injured, for the damages done by the dog,” etc. There was no evidence that the dogs were vicious in character. At most it was shown that on several occasions they had been known to run out and bark at passing teams; a propensity of which defendant declares she had no knowledge, and counsel for appellee do not contend otherwise. That the dogs were kept on the premises by permission of defendant is not denied. In a motion for a directed verdict, and by requests for instructions, the defendant contended that, as she was not the owner of the dogs, she could not be made liable under the circumstances shown for their depredations, notwithstanding she permitted such
We concede to counsel for appellee that the word “ owner,” as occurring in the statute, is not to be taken in the technical sense in which it is commonly used. Thus, in O’Harra v. Miller, 61 Iowa, 462, we said “ that if the defendant had the dog in his possession, and was harboring him on his premises, as owners usually do with their dogs, then he is the owner within the meaning of the law.” And to the same effect is Trumble v. Happy, 114 Iowa, 624.
The case before us, then, presents the simple and sole question, whether a married woman can be charged with harboring a dog, “ as owners usually do,” under proof showing no more than that the dog belonged to her husband, but that she permitted it to remain on the home premises, the legal title to which was in her ? We are convinced that such question should be answered in the negative. It is too well understood to require the citation of authorities that as long as the marital relation is maintained, the husband is the head of the family. He directs where the home shall be, and dominates in the management thereof. And the statutes giving to married women the right to contract and separate ownership of property have made no change in the law relating to domestic management. It follows that if the family reside on premises owned by the wife, it is because
It follows from what has been said that a new trial should be granted.— Reversed.