Cameron v. Bryan

Rothbook, J.

i. personal inIrijÁeneaV ry^a^ages!a" pieaamg. I. It is not disputed that the defendants were the owners of the dog which it is claimed caused the injury of which the plaintiff complains. The defendants reside on a farm in Dallas county, and their dwelling house is near a public highway. There is no question but that the plaintiff received a very severe injury by being thrown from a cart in which she was riding, onto a barbed wire fence; and the evidence shows 'without much question that the injury occurred by reason of the fright of the horse by the defendant’s dog, and the evidence fully justified the *219 jury in finding that neither the plaintiff nor her sister was chargeable with any negligence which proximately contributed to the injury.

It is provided by section 1485 of the Code that, “it shall be lawful for any person to kill any dog caught in the act of worrying, maiming or killing any sheep or lambs or other domestic animal, or any dog attacking-or attempting to bite any person, and the owner shall be liable to the party injured for all damages done by his dog, except when the party is doing an unlawful act.” Much of the evidence in the case is directed to the question whether the dog of the defendants was a vicious and dangerous animal by reason of' his propensity to attack and frighten teams driven past the defendants’ premises, and whether the defendants had notice of such habits in the dog prior to the time that the plaintiff was injured. The court below appears to have been of opinion that a recovery could not be had for any amount, unless the defendants had notice of the vicious character of the dog before the injury occurred. It may be questioned whether this is the rule as to the actual damages, and it may be that the instructions to the jury on that feature of the case were more favorable to the defendants than they were entitled to. We do not determine that question, because the said instructions are the law of the case. And it may be further observed in this connection that it was averred in the petition that the defendants were the owners of the dog, and that they harbored and kept him “willfully, unlawfully, and maliciously,” with full knowledge of the ferocious and vicious habits and practices of said dog, and made no effort to restrain him, or to protect the public from his vicious attacks. This laid the foundation for the recovery of exemplary damages, if the willful and malicious harboring of the dog could be established by the evidence. In view of these averments of the petition, the evi *220 dence of the defendants’ knowledge of the vicious propensities of the dog was proper. And we may say here that the objection of the appellants that the petition did not contain the necessary averments to recover punitive damages is not well taken. It was not necessary to do more than make a general claim for damages to which the plaintiff was entitled, actual as well as exemplary.

2. reputafion of dog: evidence. II. The'plaintiff introduced evidence to the effect that the dog had the general reputation of “chasing people in the road," and "annoyed people passing in the road considerably," and that the “character of the dog did not seem to be very good.” It is competent to show the general reputation of the animal as being vicious and dangerous as tending to raise an inference that the owner had knowledge of his vicious propensities. 1 Gfreenleaf on Evidence, section 101; Meier v. Shrunk, 79 Iowa, 17; Murray v. Young, 12 Bush, 337; Keenan v. Hayden, 39 Wis. 558.

3' 'Jeñceof'iíre-1" pleading: nance. III. We do not understand counsel to object so much to the admissibility of evidence of the general reputation of the animal, as that the traits of character developed by the evidence are not the same as those set forth in • . . . . the petition. It is averred m the petition that the dog was in the habit of attacking, biting, chasing and frightening teams, and it is claimed that evidence that he would chase them in the road did not support the averments of the petition. This position does not appear to us to be well taken. Evidence that the dog was habitually frightening teams by chasing, barking, biting, or in any other way, was competent; and the same thought is sufficient answer to the claim that the verdict is contrary to the evidence, because there is no evidence that before the injury the dog was in the habit of committing the act for which the plain *221 tiff alleges tile defendants are liable. It is claimed by the plaintiff, and there is abundant evidence to establish the fact, that the dog not only chased and ran at the horse, but that he grabbed and bit him. Now, it is true that .there was no evidence that the dog had before that actually bit a team, or a horse in a team, but there was abundant evidence that he was just that kind of a howling nuisance which is a menace to the traveling public, and a terror to restive and nervous horses.

__. toSju?ytIons IY. Exceptions were taken to the greater part of the charge given by the court to the jury, and to the refusal to give certain instructions asked by the defendants. We have carefully examined these objections, and find no error in the respects claimed. Some of them are founded upon the thought that the court charged the jury upon facts of which there' was no evidence; others are criticisms upon the structure of sentences in the instructions, and the meaning thereof. They are criticisms which are based upon reasoning which is too refined for practical application in the administration of justice. It is unnecessary to separately discuss them. The charge to the jury is a full, clear, and concise statement of the law applicable to the case, and we discover nothing erroneous in it, and nothing which could possibly mislead the jury from a proper consideration of the facts as applied to the law.

_ . ' v6Mictes: Y. The jury returned a verdict for one thousand, five hundred dollars. It is claimed that this amount is excessive. The plaintiff is a young girl, now about eighteen years old. The injury she received by contact with the barbed wire fence when thrown from the vehicle- consisted of a lacerated wound on the side of the face and neck. The physician who attended the plaintiff testified as a witness as follows: “Engaged in. the practice of *222 medicine sixteen years. Treated plaintiff from time she was hurt. I found her suffering from what was supposed to be a lacerated wound; that is, on the left side of the face at the angle of the jaw, and extended four inches, possibly four and one half,'in length, and one half or three quarters deep. The wound was gaping, and edges were very ragged and lacerated. I think I could place the index finger full length in the wound, and not more than be even with the margin of surface. There were no hemorrhage. They had staunched that with a handkerchief. You could see the external coats of the blood vessels. Pain was marked. I think about thirty stitches were required. Think wound was at least one half or three quarters of an inch longer than the scar. Think I visited her three times before she came to Perry, once each day. Fever was marked, but not severe. Indications of pain were marked. Visited her to the ninth, and possibly to the eleventh day, twice a day after she came to Perry. Dressed the wound each time. Fever symptoms continued until about the eleventh, day. It was somewhat over a month, think not quite, when I paid her the last visit. However, I made her one visit after she was taken from Perry. There was a tendency to form a sinus, an open tube, reaching from the wound to the surface. These indications continued until I succeeded in removing them two or three weeks after she went home. I saw her last, some time in December. Wound was not entirely healed; was discharging. Have given her treatment since that time, electrical in character, with the intention of absorbing the growth that seemed to roll out between the lips of the wound. The scarred condition of her face as it appears now is permanent.” The bill paid for medical services was about seventy five dollars. Add to this the proper compensation for the necessary nursing, care, and attention, and to this add the pain and suffering, mental and physical, and *223 above all the fact that tbe plaintiff must go through, life with her face disfigured, and it can not be said that the verdict is excessive, even if it be founded upon actual damages. Affirmed.