198 Iowa 465 | Iowa | 1924
— In the petition, plaintiff pleaded liability on two theories. It is alleged that defendant was the owner of a vicious buck sheep, which he negligently permitted to run at large, with knowledge of its vicious character, and that the buck, while trespassing on plaintiff’s iand, attacked and severely injured her. In an amendment, plaintiff alleged that defendant was the owner of a buck sheep which he failed to restrain, and that the said male animal, while so unrestrained, trespassed upon plaintiff’s premises and severely injured her.-
The- answer was a general denial.
Though there was a conflict in the evidence at some points, the jury could have found the facts as claimed by the plaintiff. Briefly, the facts are these. Plaintiff, a widow, with a family of boys, lived on a 76-acre farm near Toddville. She performed the usual duties of a farm housewife, doing all the housework herself. The defendant resided on a small fruit farm, west of Cedar Rapids. He also owned a 200-acre farm, adjoining plaintiff’s land. This farm was leased to a tenant, Hepker. It was about nine miles from Cedar Rapids. This farm was leased for cash rent, and defendant made no reservations in the lease. The tenant was in full control of the farm. Defendant could have removed the buck at any time, and did so after this trans
On the other hand, plaintiff’s evidence tends to show that, in the summer of 1918, defendant kept the buck in his orchard; that, during the summer,.the buck became vicious and unruly, and one day, Avhile appellant’s wife was in the orchard, the buck attacked her; that, learning this, defendant decided to take him to his large farm. A witness testifies that he heard the conversation between defendant and the tenant in reference to taking the buck to the large farm, and that appellant told Hepker that the buck had knocked his wife over, and that he had become vicious, and that appellant was unable to keep- him at the small place, and for that reason had decided to-take him to the large farm; that at one time the sheep escaped, and attempted to get into the tenant’s house, and Mrs. Hepker, after attempting unsuccessfully to fight him back with a broom, called her husband, to take charge of the animal. It is also testified that at other times the buck showed signs of viciousness, by butting into the fence; that finally Hepker notified appellant that the sheep had become so unruly and vicious that appellant would have to take it away. This was before the injury to plaintiff. The animal remained at Hepker’s. After plaintiff was injured, appellant came over and got him. As said, on-the 17th the animal again escaped, and went over to plaintiff’s farm. Plaintiff came out of the house and went to the chicken house, to feed the chickens. There was a swinging gate in the fence, through which she went in going to the chicken house, and as
1. The point most strongly stressed by appellant is in regard to the word ‘ ‘ owner. ’ ’ The question was raised in different ways, by motions to direct a verdict, by offered instructions, and by motion for new trial. Appellant’s position may best be stated by reference to his offered instructions, the statement of the substance of which will suffice. They are to this effect: that by statute it is made the duty of the owner of a buck sheep to restrain him from running at large, and for failure so to do he is liable for damages; but that the word “owner,” as contemplated by the law, means the person who has the possession, control, care, and charge of the animal; and that, if the jury should find that defendant had arranged with Hepker to keep the sheep, and had put it in the possession and under the control of Hepker,
The trial court instructed substantially that, under Iowa law, the owner of any stallion ^r buck shall restrain the same, and that it is against the law to permit such male animal to run at large.
‘ ‘ Plaintiff is not required to prove the defendant knew that the buck sheep in question was vicious, and if you find that defendant did permit such buck sheep to be at large or trespass upon plaintiff’s property, in violation of the law, the defendant is liable for damages done by such buck while so unlawfully at large, unless the plaintiff herself was at fault.”
The court further instructed that, if the jury should find that the buck was running at large, or trespassing upon the plaintiff’s property, and that defendant had failed to confine or restrain the buck, and that, on the date in question, the buck attacked plaintiff, and injured her knee and leg, and plaintiff did not by her own negligence contribute to or cause the attack and the injuries, if any, plaintiff was entitled to recover from defendant damages, if any, resulting from the injuries, if any, inflicted upon her by the buck.
It is appellant’s contention that the undisputed evidence showed that the sheep was delivered to Hepker as bailee, for pasturage purposes, and that defendant had neither the custody nor control of the animal, and that the owner of a domestic animal is not liable for trespass committed by it while in the keeping of an agistor or bailee, the liability being imposed not because of ownership, but because of possession and duty to con
Section 2312, Code, 1897, provides that the owner of any stallion or buck shall restrain the same, and further provides that any such animal may be taken possession of and sold, to pay the damages done by the animal. Code Section 2315 provides that:
“Instead of distraining trespassing stock or animals, the injured person may recover all damages caused thereby in an action against the owner thereof, and may join therein the owner of the land from which it escaped, if he is liable therefor.”
Section 2311, Code, 1897, gives the meaning of terms, as follows:
“As used in this chapter, the term ‘owner,’ used with reference to animals, means anyone entitled to the present possession thereof, the one having care or charge of them, and the person holding the legal title to them. * * * The term ‘animals’ meaps all animals which may be distrained under this chapter; and ‘trespassing stock or animals’ means those unlawfully upon land, or running at large contrary to law or police regulations. ’ ’
Under these statutes, we have held that the owner of certain male animals, as a bull, or in this case a-buck, is liable, and that it is not necessary to show knowledge of vicious propensities or negligence. They are prohibited from running at large or tres
The evidence in this case shows that the buck owned by appellant was, under Section 2311, trespassing, in that it was unlawfully upon plaintiff’s land when it made the attack upon her. Under such circumstances, the owner of a domestic animal is liable for its acts, without notice of the animal’s vicious propensities, and without negligence on the part of the owner. 2 Cyc. 376; Meier v. Shrunk, supra; Burleigh & Jackson v. Hines, supra. We said in the Burleigh case:
“Male animals prohibited from running at large are subject to a different rule from that applicable to animals in general. The owner of male animals is bound at his peril to restrain them from running at large.”
For cases construing statutes similar to our own, see Galvin v. Parker, 154 Mass. 346 (28 N. E. 244); Sheridan v. Bean, 8 Metc. (Mass.) 284 (41 Am. Dec. 507).
It is contended by appellant that the Iowa statutes with reference to animals do not affect the rule contended for by him, that liability is imposed because of possession and duty .to control, and not because of ownership. We think this contention cannot be sustained. One of the cases cited to sustain appellant’s contention is Laflin v. Svoboda, 37 Neb. 368 (55 N. W. 1049). All that that case holds is that the word “owner” includes depastures having the custody of the cattle. It is not an authority for holding that the one having the legal title to the animal is not liable. It may be that, under Section 2311, the tenant, Hepker, as well as the one holding the legal title, would be liable. But that question is not before us.
2.' It is thought by appellant that Instruction No. 9 and perhaps some others are in conflict with the instructions before set out. If there is any conflict, we think it is without prejudice to the appellant. No. 9 is a short instruction. We think, however, that this instruction has reference more to proximate cause
3. Of plaintiff’s claim for damages for personal injuries, bodily pain and suffering, and mental anguish, referred to in Instruction No. 10, the court said that such damages are not, in their nature, susceptible of exact monetary value. We think the instruction is not susceptible to the construction claimed for it by appellant; but if, as claimed, the instruction refers to the monetary value of her loss of time, of which it is claimed there is no evidence as to the value, we do not understand the rule to be as contended for by appellant. The plaintiff was a housewife, and did her work as such. Under such circumstances, the amount of recovery for loss of time or value of services is a matter within the discretion of the jury. There was evidence of plaintiff’s age, health, strength, etc. There was evidence that her injuries were permanent, and this had a bearing on loss of. time and incapacity to labor in the future.
The objection to Instruction No. 11, that it authorized a recovery for future pain and suffering without limiting recovery to such as it was reasonably probable she would suffer, as shown
There was no prejudicial error, and the judgment is— Affirmed.