*1 862 Dreher, also v. and could hard- Leaders 169 N.W.2d issue of reliance
reach the principle subject (Iowa 1969). ap- on a 575 This is ly the record of error purge plicable an is they in- when instruction defended if did they not discuss. Even do imputed meaning is cure when it attacked. could not correct rule clude the by majority to Instruction 9 flunks “Giving incorrect instruction an the error. reasoning plain on test. Its belies the mean- by giving a one correct is obviated ing perhaps tell what trial court said on impossible is issue since it the same significant in the I be- most issue case. jury whether followed correct lay jurors ordinary lieve walks of Wheatley guide one.” incorrect life would take the court’s statement Heideman, 713, 102 251 Iowa plaintiff it mean not recover if did could (1960). coverage limitations of its know the fact, As a matter of Instructions and policy the fire and am confident before light shed issue of no reliance. argued. The that is what defense counsel why necessary. That is Instruction was how briefs show that is counsel on majority As to it the takes an untenable it. sides understood position disagree- when it first concedes I and remand would reverse for new positive ment with trial court’s statement trial. duty an owner to know policies then terms of insurance and nonprejudicial
finds because omitted REYNOLDSON, it UHLENHOPP immediately subsequent from the recital of join in JJ., this dissent. plaintiff apply-
what was to advise Stoll
ing rule to this case. There is no reconciling
problem is first later what
said in the instruction. The first state- general plaintiff’s
ment is a statement of
purported duty prop- as owner of insurable
erty. simply The second tells the agent. must its
what advise al., Appellants, Ezra WENNDT et inconsistency There is no and the second limit, any way statement does not in modi- fy, change built the first. fact Appellee. LATARE, Merlin entirely the first consistent No. any purpose re- it. would not serve plaintiff’s peat alleged duty to familiarize Supreme of Iowa. Court itself with terms conditions Sept. 19, 1972. policies in a property surance issued on its paragraph telling of the instruction what agent
plaintiff must before it is advise interpretation placed
obtained. The strained, hy- majority
instruction Moreover,
pertechnical unjustified. meaning
“The real test of the and effect purpose
of an instruction for the of review * * * is, language idea which the fairly convey
objected to is calculated of jurors
the minds drawn from the ordi- **
nary life Law v. walks of Co.,
Bryant Asphaltic Paving
747, 753, see (1916); N.W. *2 in their motion trial new pleadings and evi-
asserted dence were entitled to have cause action submitted and on on a *3 theory liability. The of strict motion was overruled. appeal judgment from entered verdict, jury
on from the order' over- ruling their motion for new trial and from objections rulings adverse to evidence. on September 1968, and all times On hereto, plaintiffs material and defendant Angus kept each stock and an herd cows pastures, in adjoining sire west and east respectively, separated a fence run- line however, ning day, north and south. That and panting discovered their bull up their lathered in a mud hole near farm buildings. Simultaneously, plaintiffs also pasture bull in their found defendant’s and a hole in half of di- defendant’s viding fence. Defendant summoned was by telephone together plaintiffs and Remley, Rem- and David M. M. Howard managed defendant to defendant’s return Story, Remley, Ana- ley, Heiserman & of pasture through bull defendant’s to appellants. mosa, for newly in the fence. opening discovered Wilmarth, and H. Car- Harry E. James Subsequent examination and treatment ter, Ingersoll, & Cedar Shuttleworth by plaintiffs’ plain- revealed veterinarian appellee. Rapids, for severely tiffs’ bull from herni- suffered a badly
ated scrotum. The testicles were MASON, damaged; breeding all bull services of the Justice. were lost. Plaintiffs’ was otherwise bull and his Duane Ezra Wenndt two sons scrap to restored to health and for sold registered Larry, purebred, of a owners Company. Wilson and 6,” Angus “H K bull & Bardoliermere damages alleged paragraph 4 law for result- Plaintiffs had in stituted a action petition “that ing injury allegedly July 25, their bull their filed to trespass failing negligent of a bull caused unlawful defendant, running large in belonging Latare, Merlin a restrain his bull from neighbor. of section the 1966 Code violation 188.2 of of Iowa.” plaintiffs’ trial court submitted peti- they 1970, they their solely May amended jury the follow- negligent by adding paragraph tion must defendant was establish breeding bull running ing: “That the failing bull from defendant’s course, proxi- trespassed upon into and lands where large. the issues of came Of maintained, also bull and cows were mate cause were submit- lawfully insofar a which lands ted. returned defendant’s ver- line plaintiffs’ portion dict. concerned, in violation of sec- the theory of strict for trespass tion livestock; 188.3 the Iowa Code.” (2) giving an instruction
setting forth the law statutory partition fences paragraph without petition direction for application case; the facts allege (3) amended “that the aforesaid in admitting over objection photograph failing depicting the defendant in de- fence; restrain his bull fendant’s running large (4) admitting three photographs showing of section 188.2 of the Code defendant’s fence in repaired condition; Iowa and (5) of said bull overrul- ing plaintiffs’ adjoining motion occupied by plain- lands trial new based tiffs’ accumulated cows bull in violation errors. Iowa, of the 1966 Code of was the
proximate cause plaintiffs’ of in damage assignments argue the of error $9,873.86.” the sum of in three divisions. the In first division
they argue those relating errors The court’s statutes referred to refusal and plaintiffs’ give omission to petition requested as amended provide: concerning instructions the
theory of strict in livestock tres- pass incorporate such those “188.2 Restraint of All animals. ani- given. instructions mals shall restrained the owners thereof running large.” at
I. complaint Plaintiffs made no or ob- jection any assigned error that the court Trespass “188.3 on lawfully fenced land. correctly had not summarized the issue of Any land, trespassing upon animal negligence allegation raised by their de- as provided law, be distrained fendant failed to restrain his bull from land, the owner of such for all held running large in at violation of section it, done thereon unless it es- 188.2,The Code. caped from adjoining consequence land in neglect the of such landowner to main- This present tain statute first part appeared of a lawful fence.” 2980, Code, form as section The 1924. 2312, Code, was derived from section The Evidence at introduced trial would war- 1897, reference to the with rant a jury facts; in finding following the The restraint of male to animals: injury the bull’stesticles was caused trauma, severe disease; respon- sibility bull, stallion, maintenance of any jack, the fence was “The owner same, forty assumed the boar south shall buck divided— defendant, rods; any rods forty person may possession any the north take large county hole was in running the northern such animal at in the half line, resides, fence respon- person defendant’s area of in which such or in which ** sibility; estate, he occupies barbed wire in defendant’s or uses real fence was working electrified and at the incident; ground changed
time of to include torn The was thus up along sides all of the fence around animals.
hole; and no one fight. saw the bulls 1966, Code, the other The
Section amended seeking to in reversal assert the statute referred section trial to in- the substance (1) refusing petition, court retained erred: Code, 2313, jury plaintiffs struct the could recover on 1897. Bartholomew, 377, in certain factual was
This court held Strait Iowa prima permitted N.W. had situations Defendant neg- a to run at large highway. calf negligence facie evidence early go case the court did not ligence as matter law. question far as as in However, say: later cases. the court did 1008, Kemmish, Hansen ‘The ordinary defendant was bound to use 498, 45 A.L.R. 208 N.W. prudence keep care and maintain- for in- a motorist dealt with claim of pasture around the in which his resulting a collision with de- juries confined, adopt stock was and to means large high- on the running fendant’s boar prevent that were suitable reasonably way 2312 and in violation sections getting highway. the stock from on the contended de- 1897. Plaintiff ** you *.’ The court instructed: required ‘[I]f restrain the boar fendant was large running find that said calf was peril. at his This court concluded that through negligent some act of commission respect highway the fact accidents defendant, part or omission on the large running the animal was finding you then would be justified prima neg- facie highway constituted mere negligent permitting said calf defendant ligence, having right ” large.’ to run at Loc. cit. Iowa at show, could, if he he exercised rea- *5 1109-1110,120 at 446. N.W.2d restraining sonable care the animal. type next case of this considered in The 1107, Schaefer, Ritchie v. Iowa 120 Wild, the decision was Ritchie Stewart v. damages was an action N.W.2d 678, 195 In the Stew- N.W. 266. from a arising collision between strayed upon the hogs art case several had had es- Angus car and some cattle which hogs, highway. car struck the Plaintiff’s yard caped from and defendant’s cattle plaintiff family and and overturned strayed upon public highway. the Plain- injured. were appeal following tiffs’ defendant’s ver- one dict raised The trial court issue. the question The was raised whether jury presence the of the cattle structed pertained of restraint animals statute upon highway the of defendant’s in front well to farm- highways travelers as prima was farmhouse facie evidence farm neighbors whose ani- ers and this er- was negligence. assert mals were restrained. ror and the court have instructed should neg- was jury straying of the cattle reversing the court for sus- In trial per upon ligence se. solution rested The court taining defendant’s demurrer 188.2, interpretation an of section The said: court, this In the trial affirming Code. by “It court been said: established “ * * * trial, Upon be incumbent it will such as decisions Iowa that a situation negligence, upon plaintiff prove pertains prima in the is facie instant case neg open defendant it will be and negligence. trial evidence The court same, as well affirmative ative giving jury its instructions followed hogs that negative Proof evidence. precedents.” such be large doubtless running at would breach of defendant’s presumptive evidence then The court continued: therefore, negli and, statutory duty, “ might gence. What circumstances ** * upon touching case The first excuse deemed sufficient to running at reason of animals fault, is a him free to render large being an automobile struck gravel leading property in the down a to a question demurrer.” lane involved at 269. road. country at Loc. cit. Iowa 195 N.W. negligence alleged plaintiff’s peti- question confronting the court tion and submitted defend- was whether Hansen
Ritchie v. Schaefer ant’s failure to restrain his sow from run- Kemmish, prior cases supra, similar 188.2, ning large in violation at adopted should he and a rule overruled The Code. etc., holding cattle, hogs, owner guilty per se ani- when such the court referring to this statute our highways mals wander said: our state. The court declined to overrule prior of au- weight cases on basis the dealing “In with that we have supports thority definitely in the nation said, proof running animals are Strait, position in the of Iowa Stewart large prima negligence, facie and Hansen se, cases. may be rebutted negligence per ordinary evidence of reasonable * * *
Klunenberg Rottinghaus, care under the circumstances. factually different cit. N.W. [citing Loc. authorities].” preceding from the cases as no collision 2d at 573.
between a motor vehicle and animals run-
ning large highway on the was involved. our atten- cases have been called to No injured In the cited through any tion nor have we found inde- when helping she fell while her husband pendent claims of dealing research with corral cattle. had defendant’s The cattle injuries resulting from motorists for col- strayed from defendant’s field onto the large running lisions highway. attempting to drive tthe cattle highway of section *6 from cemetery prevent and from them Code, evidence tend- The which have held going highway, plaintiff further on ran ing prove statute con- violation of such over top cemetery into wall imposes negligence per se strict stitutes or space. damages her She based claim for liability trespassing on the owner against on his alleged negligence defendant animal.
in failing to restrain his cattle run- from 465, Hickey Freeman, 188.2, v. Iowa
ning large at in 198 198 violation of section 769, plaintiff injured by a tres- N.W. was The Code. passing sheep returning while buck her chicken house to her farmhouse. She The was instructed that failure damages asserted her claim on two comply with the statute would constitute theories, based on liabili- one common-law prima facie negligence evidence of rebut- ty arising negligence from the owner’s in table ordinary reason of reasonable and large at permitting animal to run and care under the circumstances. The instruc- other, on the there was tion was held proper. The trial or- court’s statute for failure restrain der granting judgment notwith- The animal. court instructed on both standing was affirmed on grounds. other submitting jury. in theories the case Dreher, Leaders v. 570 169 N.W.2d opinion, In the course of the the court (Iowa an 1969), was action for said, 2312 these statutes “Under [sections Code, have trespassing 2315, and The we held sustained when defendant’s sow 1897] animals, as that the owner of certain male injured struck and as he at- liable, bull, buck, is a in this case a tempting plaintiff’s to drive sow 868 knowledge impose the owner. strict to show necessary is not prima facie evidence negligence.” Such propensities
of vicious the owner ex- be rebutted ordinary in re- ercised reasonable care this state- support for cases cited The straining animals. 1924 decided before ment were the. statutory duty to re- making the change refusing The court did not err sub- Wheel- applicable to all animals. See strain strict as a result mit the issue of 1243, 1240, Woods, er v. plaintiffs’ pleading proof defend- cases, Burleigh 407, The same N.W. 188.2, The ant was violation section 199, Hines, 124 99 N.W. Iowa v. & Jackson Code. 17, 44 Shrunk, v. Iowa and Meier Hickey Freeman along with v. N.W. Kemmish, II. be considered There remains again in Hansen are cited reason support plaintiffs’ contention that at 208 N.W. out, set May 1970 amendment statement. for a similar support
supra, the evidence adduced thereof, generated on jury question was a Hickey from the quoted statement liability. the issue strict law in conflict statement of with the Dreher, supra, quoted, from Leaders England, By law of an own- the common two statements are 573. The strictly held er of domestic though
not in consonance even
both involve
trespasses
the land
persons injured on
liable for their
claims of
their own
neg-
keeper’s
irrespective
be-
of others
of the
property
trespassing
a
animal. We
Torts,
James,
sec-
ligence.
Harper
lieve
the correct
the Leaders case states
Ed.,
Torts,
Prosser,
illogical
person
14.9;
sec-
rule.
would
that a
tion
Fourth
It
seem
Institute,
injuries
order to recover for
suffered
tion
also American Law
76. See
Restatement,
Second, Torts,
an
collision
an animal
Tentative
automobile
large upon
highway in
running
public
(1964),
section 504.
Draft No. 10
however,
early days
must
clear
Iowa,
courts,
prove negligence
part
including
many
owner United States
failing
it as
of the animal
rule
rejected entirely
the common-law
statute,
person
in-
required
trespasses,
whereas
as con-
liability for animal
strict
trespassing
jured by a
animal on the
trary
custom where cattle
to established
*7
jured
impose
party’s property
large
could
strict
graze at
the
were allowed
liability
by
showing
Bissell,
merely
the owner
tion 14.9 at 823-824. cit of the authorities Examination “ * ** country become But the has others, as ed, compels the many as as well settled, has tendency been closely more in ac proper rule of law conclusion rule, by the common law either restore injuries to damages per for seeking tions is matter now by or decision. The alleged property to have or sons provi- governed statutory very largely by trespassing ani proximately caused been adopted legislation to be The first sions. proof fail mals dictates that of the owner’s statutes, ‘fencing which out’ consisted of ure to restrain animals violation plaintiff properly if Code, 188.2, prima provided The section constitutes liability strict his land there was negligence negligence, facie not fence, through the per se, proof when the broke of such violation does
g(J9 liability only when there was enclosed a but otherwise law. “ * ** country said, is in regard fault. As the It the owner at that it is Nevertheless, conflict between more settled the became since livestock owner is agricultural absolutely liable, interests grazing may he avoid ‘fencing excuse, stat- many states in’ some resulted situations. is a valid utes, required example, the owner of the ani- if animal has escaped them, through mals plaintiff’s portion to fence otherwise of a fence; strictly liable if and made him he did it has always been held that * * Prosser, supra, do so. section owner is not liable when he driving is live- at stock pages highway, 76 497-498. along using reasonable them,
care to control and one of them wan- land; ders out of his control properly onto another’s Section 188.2 thus de- ** Note, statute, Iowa 34 L.Rev. at “fencing in” 320. scribed section therewith, in conjunction Mallory See “fencing out” v. 188.3 as statute. 16, 19, 387, Jurgena, 250 Iowa 92 N.W.2d 389. Historically, grown there have liability. three distinct areas of A first A third basis of stems from negligence. basis of Application involving- situations wild or danger beasts negligence classically doctrine animals, lions, ous tigers, bears, such as arisen when lawfully the animal is wolves, elephants like, and here the place Note, injury where the occurs. Lia owner traditionally absolutely liable for
bility for Harm Livestock, Caused 34 injury caused such an ani 318, Iowa, Iowa L.Rev. how 319-324. Note, mal. 319; Terp 34 Iowa L.Rev. at ever, liability based on also Schinkel, 553, stra 547, v. 235 Iowa 17 N.W. Typi arise in certain situations. 106, 109-110; 2d Manser, Parsons v. 119 statute, cally, violation restraint sec 88, 86, 93 N.W. 97 L.R.A. 188.2, Code, tion is involved and it Am.St.Rep. category 283. This pre also prima constitutes negli facie evidence of n sumably includes domestic animals which gence; liability. it does not invoke strict knew, known, the owner or should have standard, For application of this see Lead dangerous Prosser, propensities. have Dreher, 573; ers v. 169 N.W.2d at Klunen supra, page section 76 at 500. berg Rottinghaus, at 70; Schaefer, N.W.2d at Ritchie v. Reconciling principles these with rele Iowa at 446-447; statutes, vant an based on the action Kemmish, Hansen v. 201 Iowa at statute, restraint 280; Note, N.W. Iowa L.Rev. negli is founded on the
gence theory
Leaders
Dre
alone. See
her,
A
gender
second
of liability is
in v. proof tending support them. 457, light of 1130, 1135, 459: N.W. 293 mals, Animals domestic flicted “ *** the rule is by them § 145: the ‘The only where is liable for thus stated owner or of domestic [1] injuries keeper of he has C.J.S. ani- in- ed that defendant’s ed was a respects They allegations advanced asserted in proximate this cause of their paragraph 4 paragraph negligence in the two argument 6 as in the face as damages. amend- amend- wrongfully flicted been propensities.’ result of known negligent, injuries, ** [2] place vicious tendencies [3] the animals where injuries they are was an issue tried tion of strict even Since though plaintiffs do not liability under section pleaded, they are not consent contend limited parties ques- submissibility the is- respect of to the do 188.3 The Code of Sections 188.2 de- allegation sue strict lia- that specifically alert reader negligent failing fendant thereof arising from violations bility trespassing upon plaintiffs’ his bull from liability, re- and strict negligence based The fact violation of section 188.3. past decisions Only by reading spectively. persuasive petition amended is not does incorporating along the statutes proceed of the court intended question is only find liability; one the distinction. demon- two theories of difference plaintiffs perceived recovery possi- whether their strates awareness perfect as to proceeded so theories and bilities under both sections 188.2 and 188.3. their claims thereon. repeatedly held This court out, plaintiffs originally As set pointed issues submit those trial court must ground forth in petition one proof. Adams pleadings raised of section upon violation based 1969); 100, Deur, (Iowa v. N.W.2d form, paragraphs 188.2. amended 360, Dopheide Schoeppner, 163 N.W.2d allegations petition add and 6 and authorities cited. 1968) (Iowa 188.3. Rule based Procedure, provides: Rules of Civil hand, On the other court has specific objec said that in the absence of Paragraphs. Division “Numbered tion, advantage pleader is accorded the separate
Each of action or cause defense intendment, every reasonable even to separately must be stated in a numbered implications necessarily inferred. Coleman sepa- Every pleading division. shall be Hall, 1968); 332 (Iowa paragraphs, rated into each numbered Education, Board of Education v. Board contain, be, shall as nearly as 840, 844, 467; 260 Iowa 151 N.W.2d a distinct statement.” 10, 13, Harvey, Reed v. 110 N.W. plead 2d Confusing 443-444. as the requirements wholly disregard were, ings requested specific no of this rule the fact maintain statement clarify plaintiffs’ of re alleged days petition five amended covery plan (although defendant need before sufficiently commencement of trial plaintiffs’ case). asserted alternate theories against failing negligence in defendant — Along this same line we have said: *9 animal in of section violation liability put upon by him strict “Much regarding has been written con require section of both pleadings by 188.3—to submission struction of when attacked a argues plain- cases apart Our earlier create Defendant that motion to dismiss. uncertainty applicable allege any as to the rules. tiffs’ failure some claim other than However, negligence, well settled that where wholly it is now the evidence was insuf- pleading justify motion ficient to doubtful attacked submission theory a liability against proposed plaintiffs’ as will be resolved strict before answer [it] requested qualified by the pleader. This rule is instructions. provision petition that if the does additional
allege facts ultimate He that maintains one not recover might states a under recover and claim liability on a theory of absolute for tres- sup be introduced which evidence 188.3, pass under section unless thereof, petition port be con should law; their provided by lands are fenced as most light strued favorable required plaintiffs pre- to show as a in his plaintiff with doubts resolved favor requisite recovery portion that their accepted Bige true. allegations as the division fence was under lawful (Iowa), low v. Williams N.W.2d plain- insists Code. Defendant 524; (Iowa), tiffs, Wolfswinkel Gesink allegations para- of their reason 452, 457; gram N.W.2d Nelson v. Wolf amended, graph 4 as had assumed the bur- 571,573, citations.” (Iowa), 173 N.W.2d establishing den of as element an essential Company of Manufacturing Bindel v. Iowa their claims that their “fenced Iowa, Rapids, (filed partition as law” and that Cedar lawfully established as such. May 1972).
Having plain- failed to sustain this burden tiffs neg- can recover if defendant’s in support Defendant contends ligence is established. plaintiffs’ judgment claims in their amend- petition ed are still cast in Plaintiffs assert the introduced evidence they plead failed a theory of strict lia- trial, sufficient to submission of warrant bility recovery separate a basis of negligence issue, was likewise sufficient Thus, plain- their basic negligence claim. justify submission of the strict tiffs were not entitled to their ad- proposed theory neither since to be they ditional instructions since were not presented supporting, nor the defendant’s pleaded within issues. against, defense livestock
strict liability any way differed from though plaintiffs pre Even that neg- failed to which it would have ligence cisely plead theory liability, theory. any urge strict event they required por- fact were not alleged of section 188.3 to show their original compels tion of the amendment fence was lawful since cause light the conclusion in the the state evidence established defendant’s bull en- that out, plaintiffs’ pasture through tered supra, plaintiffs’ ments of law defend- set petition portion sufficiently theory ant’s asserted a ~of of the fence.
strict that entitled them have validity questions plain- Defendant cause submitted to the on such argument tiffs’ second since the issue sur- theory if supported evidence. substantial sufficiency rounding fence is cause; proximate not one of it is a matter III. Since the trial court did not indi- showing statutory have conditions cate wherein failed—whether in showing, been pleading met. In absence of such proof sufficiency of the evi- — specific remedy statutory avail- support plaintiffs’ dence to of strict able. must be examined. *10 trespassed upoji out, tiffs to establish the animal 188.3set Code section As construe we lawfully fenced insofar as explicit- is which was statute supra, under this con- portion partition their fence was had of showing animal ly predicated on a specifies cerned. Section land, “upon fenced as trespassed rail, types board three of “lawful” argued other- logically be It cannot law”. fences— Note, Agricultural barbed wire. wise. Law, Fencing Iowa L.Rev. the conclusion supports The record F.vidence introduced defendant relat- in the parties considered so portion ing fence to condition stages. pleading and trial plaintiffs establishing in
did not aid prerequisite recovery theory to paragraph alleged Plaintiffs had liability. of strict bull that defendant’s petition their amended lawfully trespassed upon lands which were Under the record before us the trial plaintiffs’ portion of
fenced insofar as However, refusing court was correct in to submit the partition fence concerned. was question of strict under section 188.- to in their main reference the fence assignments 3 of The Plaintiffs’ Code. iden- to Duane case was limited Wenndt’s they failed to es- cannot sustained since and to a plaintiffs’ exhibit 4 tification necessary tablish facts afford them a de- comparison of their woven wire with right recovery theory of under the strict fendant’s woven wire. liability. allegations of withdraw In motion to plaintiffs’ amendment made at close IV. In the second division of their evidence,
plaintiffs’ asserted defendant argument plaintiffs brief and contend the allega- no there was sustain giving relating court erred in instruction 6 tion. statutory fences without direction application to the facts of the case. Nevertheless, argue continue plaintiffs reply in their brief it not their burden was theory submitting portion partition to show their fence negligence, the court told quote awas lawful fence. We show, struction 5 defendant entitled argument: could, if he that he exercised reasonable “ * * * plaintiffs-appellants’ posi- is prudence restraining care and his animal. case, tion that under the facts of this They determin- were further instructed plaintiffs’ irrelevant; fence that defend- ing they might consid- that issue take into exposed ant’s bull and cattle were never measures, any, eration if what any portion plaintiffs the fence which escape, prevent includ- took to the animal’s agreement, mutual acquiesced oral statutory par- ing whether defendant had a parties, all obligated to maintain. following instruction tition fence. Further, irrelevancy plaintiffs’ fences. they given the law on pointed up additionally defendant’s merit. assignment is without Plaintiffs’ undisputed admission and the evidence that defendant’s through bull broke the defend- V. In another division ant’s fence to enter pasture.” assignments argue their fifth and sixth erred the trial court contend agree
We cannot with the of this photographs of defendant’s in admitting argument of our view construction of fence. portion of the division plain- section 188.3. It was incumbent *11 question admissibility photo- escaped unless it adjoining from graphs neglect under similar is con- consequence circumstances of the of such land- length Johnson, sidered at some Elkin v. owner to part maintain his of a lawful 46, 50-51, 445- fence. repeat there. 446. We will not what is said (Section supplements by 188.8 188.3 § case, As the Elkin we find .no merit granting the owner of the land the alterna- plaintiffs’ assignments relating error of suing tive trespassing the owner of the admissibility photographs. damages animal for distraining instead of the animal.) VI. In view of what we have said in divisions, preceding remain- Section 188.2 creates a to restrain d%ity ing assignment without merit. but expressly does not create civil
liability violating duty. for con- trast, The case is therefore —Affirmed. (and 188.8) 188.3 creates civil § §
liability trespassing for animals but does spell not in words out a duty except— MOORE, J., and C. and RAWLINGS arising inference from the word “tres- LeGRAND, JJ., concur. passing.” REYNOLDSON, and UHLENHOPP What effects do these sections have as JJ., dissent. liability? to civil may sections be con-
sidered in reverse order. REES, McCORMICK, HARRIS expressly by a statute or implica- When part. JJ., takes no acts, imposes tion liability for the statute itself creates and a need UHLENHOPP, (dissenting Justice only show a violation of the statute result). division III damages as a result. As stated in Re- statement, Torts 2d Comment 6: § do 188.2 and 188.3 of the Code How §§ an affect civil of the owner of respects any or all of these the stand- animal ? ard conduct be defined and es- legislative tablished enactment Those forms were in sections various lays requirements down con- our Codes down 2312 and 2313 §§ duct, provides expressly or im- changed They Code some- of 1897. plication that a violation shall entail civil what as 2980 and 2981 of the Code §§ in tort. In such case the and thereafter remained the questions effect that can arise as to the except same for their numbers. Section of the statute are as to its constitution- provides: 188.2 ality and construction. All animals be restrained shall in 286, And Comment c: § running large. owners thereof an adminis- legislative A enactment or And provides: § spe- may provide in regulation trative implication by necessary cific terms Any land, trespassing animal liabil- entail civil that a violation shall law, provided by be dis- case, legislation or ity. if the In such land, trained owner of such regulation applicable is valid and case, it, apply must it. the court held for done thereon facts of the all Kemmish, hand, (Iowa); itself does 2d Hansen v. if On the other liability, impliedly impose expressly N.W. 277. vio- standard whose may still establish a *12 case, present Wenndt negligence or evidence of lation sections, pleaded but the trial court event, while lia- negligence per se. such jury submitted statute, may it is bility not created predicated negligence 188.2. The §— negli- at virtue of the common law arise excepted to the trial court’s fail- Wenndts As stated gence doctrine. C.J.S. liability predi- ure to submit the issue Negligence at 615-618: 19(1) § cated on 188.3. §— statute, may, by extend legislature The question is evidence is The whether the . . . viola- common-law duties bring under sufficient the Wenndts § give statutory duty may such a tion of 188.3, jury specifically, more whether the of a on behalf rise to a cause of action “fenced reasonably could find this land is thereof. person injured who is reason provided by The fence involved as law.” parties’ between the
is fence pastures. necessarily exist will Such chapter fencing is 113 of the statute Our imposed by expressly where is fences are described: Code. Two kinds of Liability provisions. its for violation of “tight” and a fence. “lawful” fence §§ exist, however, where the stat- also is principal The difference 113.20. impose any civil in terms ute does not normally woven wire tight that a fence provisions, its for violation sheep. bottom, hogs and so as to turn at the penal is although the enactment tight indicates that Nothing 188.3 § event, however, character; no in such required to make that is remedy lie, statutory but the action will lawful from a applicable, distinguished neg- is action for found in a common-law fence. ligence, consisting in a of a statu- breach duty. tory . . . however, demonstrates, evidence more than here was partition fence that the Negligence also 57 234— See §§ Am.Jur.2d fence; tight fence. it was a simply a lawful the matter in terms (putting 236 at 615-620 40 rods approximately had The Wenndts distinguished from liability per se as had Latare and defendant on the south ; Restatement, 2d se) negligence per Torts north. on the rods approximately neg- is (when 288B evidence of § the bot- end had woven wire Wenndts’ ligence negligence per se). it is and when wire of barbed three strands tom and woven wire end had top. Latare’s Section a statute of former 188.3 than (a little lower the bottom imposes type. expressly The section lia four strands of wire) and woven Wenndts' animals, trespassing enforceable bility posts were top. The at the barbed wire by distraint under action 188.3 itself § well set apart and a rod than less All need 188.8. that a § tightly fastened wire solid. The is that animal tres show defendant’s A, B, C, D, are and E them. Exhibits passed provided by on land law fence, large photographs and the as a result. the other On exhibits these testimony and hand, type. clearly of the latter § reasonably find could impose liability, The section itself does bull Latare's by law. fenced as but establishes a standard whose violation own end through Latare’s went prima this court to be facie accom- holds on the shown end is That fence. right B, extending to the actions for in common-law Exhibit panying posts. double from the Dreher, negligence. Leaders N.W. *13 requires. The full inches 113.18 fence
Latare that the was not contends § ago, built and at the time years several provided by top fenced as law because the top barbed wire at up come occurrence of the fence did not wire entitled, high “Trespass on 188.5 inches Section point its lowest was 40½ above point inches highest at the pro- (Italics added.) land.” 47½ unfenced requires a ground. Assuming that 113.18 § vides : fence, conten- Latare’s 48-inch nevertheless founded. Land well appear tion does not fence, If no lawful there be by law within may be fenced as and the line thereof has not been as- although at times purview of 188.3 § signed by the fence either viewers compliance perfect not be agreement parties, any animal repair. See perfect 113.18 § partition line trespassing across such Chase, 14 N.W. Noble distrained, shall be nor shall there ordinary the animals Indeed, any liability therefor. properly is not the fence escape because always perfect up; if fences were kept neigh- fencing permits, As law these would sel- repair, compliance § by agreement apportioned the be- bors line Moreover, exception be needed. dom partition fence tween them and erected a landowner clause 188.3—that § if the animal that section proceed ago. find the years several could *14 consequence his land onto came rather case falls within 188.3 than 188.5. § § part of the neglect to maintain his own actually real to wheth- question A exists as contemplates that 188.3 fence —shows § reasonably er a could find that provided law” may “fenced as be land provided law. land fenced complete com- not in although the fence partition The substantial fence place. given or pliance repair at a time doubt existed no accounts fact exception be would not Otherwise Latare on the jury’s verdict for needed. issue under for the Wenndts’ 188.2—and § have insistence that also should 188.5, stating when Again, § submitted under been 188.3. § be land distrained, infers that not be although the by law the matter of the In connection with or re- compliance in perfect is not fence, prairie gone open the bull over pair. height was once had fencing large. livestock roamed because end the fence the Wenndts’ enacted, any landowner statute was low, too would have a different we requiring his that law could come fence, through the But he case. went the erection of join owner to adjoining Latare’s end. apportioned by fence, to be township trustees. agreement §§ predicated on tres- claim The Wenndts’ land had unfenced Thus Iowa 113.3. been sub- should have pass under 188.3 § the fenc- fenced under and land which was judgment should jury. mitted to course, Today, little ing law. on that claim. reversed for trial unfenced. antipode of 188.5 is § Section REYNOLDSON, in this dissent. J., joins is unfenced. land which and deals with