(Melicker v. Sedlacek,

He

next day went to defendant's home, saw and conversed with him, saw the dog there in the yard, and recognized it as the same dog he struck; didn't examine the dog to to see whether he was hurt or not. was limping, can't say which foot, thinks the left hind foot; says defendant wanted to know how it happened; told him, and asked defendant what he was going to do about it. Defendant said he didn't know. Defendant said he wouldn't do anything about paying the damages. Defendant asked if witness knew it was that dog, and witness said he had seen the dog before, and it was, and that the dog had run out at him before; that the defendant admitted that the dog had run out at people, but not that far from the house. He said the dog belonged to his son; that he wouldn't stay at his son's house, and went back and forth, and stayed there with him. The dog had run out at witness as he passed there before, nearly every time he went by; thinks the car went a rod or two after he saw the dog before the contact. "He jumped in front and barked, and jumped in front of the front wheel, and I hit him with the front wheel, and the car ran over him. He lay there in the road afterwards."

Q. Now, that is all the dog did, just as you testified here?

A. Yes, sir.

Q. And that was that he barked at the front wheel, and after he did you struck him with the automobile? A. Yes, sir; it turned the car to the left.

Q. Now, when you saw the dog coming, what did you do, if anything?

A. I didn't have a chance to do anything. I hit him so quick. Threw the clutch out, and put on the brake, and tried to stop, but there was no chance. The traveled road was all right up close to the bank. The wheel track was close to the bank, 2 feet or 3 from the bank. The bank was probably 4 feet high, and the dog was on that side of the road, on the south side of the car,

Iowa, -, 179 N. W. 197.)

and I was 2 feet from the edge of the bank. The bank was a bank sloping down, not straight up. The wheel didn't run over the dog. It hit him, and threw him under the car. I think just the middle part of the car ran over him. The dog still lay there, after I got out from under the car. After I got my wife out, I went to see the dog, and he was going up the road squealing. That is the dog I saw at defendant's the next morning.

Q. When the dog came towards you, you knew it was the Sedlacek dog?

A. I wasn't quite sure. I thought it was his dog. I wasn't sure. His nephew told me it was his. I seen the dog just before I hit him. I got his description just before I hit him.

Q. You tell this jury that you minutely examined this dog when he was coming at you, and you were turning off the gas, and throwing out the clutch, and putting on the brakes, and that you took this dog's inventory, and found that he was a brown dog 18 or 20 inches tall, and had a white ring around his neck?

A. No; I didn't. I say I seen the size and the color of the dog. I couldn't just exactly tell. I seen him jump off the bank.

Q. You didn't know, then, whether that was the Sedlacek dog, or not, that jumped off the bank?

A. No; only what his nephew told

me.

Q. That is all you did know about it, then, what his nephew told you?

A. No, I knew it was his dog; but to make sure I asked him, and he told me.

Q. Why did you ask him?

A. I thought maybe it was somebody else's. I didn't see the dog there before he jumped out of the weeds off the bank. The next morning defendant said that the dog was his son's, but that he stayed down at his place. John F. Sedlacek said that this dog belonged to his uncle John. There was nothing said about the dog running out at automobiles.

Mrs. Mellicker, testifying with less detail, says: She saw the dog. "He just ran off the bank in front of the car, and that is all I saw. There was not much time between the time I saw the dog jump off the bank in front of the car before the car struck him; didn't see the dog in the road after the accident; heard him squealing; had a moment's glance of him when he jumped down in front of the car; noticed he was brown, with a white collar around his neck, and a white breast. He ran off the bank and right toward the car, in front of the car. He started to bark, and then ran in front of the car, and that is all I saw. I have told all the dog did there at that time."

She also describes her injuries, where they had been, where they were going, and so on. Another witness testifies to being with plaintiff's husband at defendant's home the next day; says there was quite a conversation, but witness did not remember much of it; did not pay much attention. Defendant said he did not think his dog would go out that far from the house. The dog was there; says the dog was a medium dog, dark on the back, brown and white around the neck. Defendant said his dog wouldn't run that far from the house; said the dog would run out and bark at people in front of the house, but would not go that far; said it was his son's dog, but the dog made his home there at the present time, the defendant's house; says the dog ran out and barked at his front wheel twice that summer. Witness passed defendant's eight or ten times during the two months; thinks defend ant's son Frank was present at the conversation. Another witness says: A dog, which he describes as a brownish dog, yellow back and white collar, a little white on his neck, came out twice as he passed defendant's place. He would come bouncing, as if he would chew the tire off the car; would follow for a rod or so, and if you would speed up he would slow up and go back.

"This was in the summer of 1918. We were out pleasure riding. I was going 12 or 15 miles an hour, and the dog couldn't catch me. I would be pretty far along before the dog got to run out there. He wouldn't follow far."

This is the substance of plaintiff's testimony in regard to the transaction itself, although we have not attempted to go into any detail as to the injuries, damages, and so on.

Defendant testifies: That the next day after the accident, when plaintiff's husband came, his son and John F. were there. Witness examined the dog, to see if there were any wounds or sore spots, or that the dog flinched. There were none, and the dog did not flinch or limp. He tells how the dog came to be on his premises; that his brotherin-law rented his farm, and brought the dog with him. The brother-inlaw lived there about a year and a half, and moved to town, and a neighbor took the dog. A hog bit the dog at the neighbor's, and he ran away, and went to another neighbor's, adjoining defendant's farm, and this dog came to his place. Defendant's son was to move on the neighbor's place, but, not having yet moved, was living with defendant. "The dog, after staying a week or so at the neighbor's, without anything to eat, came to my place, don't know whether he followed us, or the other dogs that were with us." Defendant's son moved to the neighbor's place about the 1st of January. "After my son moved, I took the dog over there and tied him up. After he kept coming back, I took a switch and switched him, trying to drive him back to where he used to stay; switched him five or six times. I did not have knowledge that this dog had the habit of running out. after cars. Twice I saw him run out into the road and bark at an automobile. The last time was in the spring of 1918; never saw him. run out and snap at automobiles. The second time he ran out, I called him back and switched him. Since then, I have taken particular notice

(Melicker v. Sedlacek,

to see whether he went out, and I never saw him.”

He denies the conversation testified to by Mr. Mellicker the next day, and gives his version of it, and says the dog might have been at his place for a little more than eight months before the accident. After witness switched the dog to make him go away, he would not go, but after that he stayed at defendant's place all the time. He did not feed him; his folks did; has one dog there, besides this one; says he thought he had broken the dog of running out. The dog has stayed at defendant's place since the accident. Some days, Sunday afternoons, there would be twenty-five cars pass by, and the dog paid no attention; knows this of his positive knowledge.

Witness Dehner says: He was at the place of the accident about five minutes afterwards. It was dark, and a foggy night, misting heavily, more like rain. It was impossible to see through the wind shield.

(Last

answer stricken on plaintiff's motion.) Says he has passed defendant's place seventy-five or one hundred times during the year 1918; saw the brown and white dog in the yard. He never ran out at the automobile of the witness. "I am fortysix, my eyes are good, and I say it would be impossible to see more than 2 feet out in the dark that night, and see an object."

Another witness testifies to having passed defendant's place many times, fifty or one hundred, in 1918, and at none of these times did the dog ever run out or bark, or attempt to bite the car; noticed the dog there in the yard. Other dogs had run out and barked at his automobile. Other witnesses gave similar testimony.

John F. Sedlacek denies telling Mr. Mellicker that the dog was his uncle's; examined the dog at defendant's house the next day, and there were no bruises, and there was no flinching; made a careful, critical examination; has passed defendant's place ten to twenty times a

Iowa, -, 179 N. W. 197.)

Some

month prior to the accident. times he saw the dog in the yard, and sometimes he would not. The dog never came out to chase his automobile, and never followed him. Mellicker and wife came to the house of witness after the accident; went out with a lantern. They had no light. They told of the accident; mentioned the accident, and said the automobile ran into a little brown dog; examined the dog the next day, and there was nothing the matter with him.

Defendant's son Frank, nineteen years of age, says he saw the dog examined the next day, and saw him walk and run, and there were no signs of lameness. In the conversation next day, Mr. Mellicker complained of the roads being rough. Another witness says the road was rough, with sods in the middle; the next morning was at the place of the accident, and noticed where the automobile was sitting, and that the tracks came diagonally from the north side of the road to the south side, across the rough part, over the sods. The automobile had been turned back on its wheels; heard a conversation the next morning between someone who gave his name as Mellicker, and another, Ellis, who lived at the county farm, where plaintiff and husband lived, as follows: ""This is Mellicker talking.' He said he couldn't come back to work the next morning; that he had an accident; and Ellis says: 'You better sell the damn thing; that's not the first one you had.'"

He testifies further that there was a little bank on each side of the road at the place of the accident, and a small depression on each side of the roadway, for the water to run; a good track on each side of the road, one side as good as the other; could see no reason why a man driving along there should cross over to the other side. The track going across there went up to the automobile, and did not go any farther.

Another witness says the dog in question was more than twelve years old. He has known him that

long. Twelve years ago the dog was at Dvorsky's, his neighbor across the road, and is the neighbor referred to by defendant. During the twelve years he has known the dog, never saw him run out at automobiles. He barks, and that is about all; never saw him outside the house yard; lives about a mile and a half from defendant.

In rebuttal, Mr. Mellicker denies the phone conversation, and denies crossing the road diagonally.

By the errors assigned, the defendant challenges the sufficiency of the evidence to sustain the verdict; that the court erred in not sustaining the motion to direct a verdict for defendant at the close of plaintiff's testimony, and all the testimony; that the court erred in admitting and excluding evidence; erred in refusing instructions asked by the defendant and in the instructions given.

1. Appellant argues at some length that he is not liable under § 2340 of the Code. They cite Brown v. Moyer, Iowa, -, 171 N. W. 297, and other cases, to sustain their position that to authorize a recovery under the statute it must be shown that the dog was worrying, maiming, or killing a domestic animal, or that it was attacking or attempting to bite a person. Counsel state in argument that the purpose of arguing that the case is not within the statute is that there is no statement in the record by appellee that they are not claiming under the statute, and that they therefore argue the question, lest it may be presented by appellant. There is no evidence in the record to show that the dog in question was doing any of the things enumerated in the statute. It will It will not be necessary to consider this question, because appellee says that the plaintiff is not claiming under the statute, but that a recovery is sought under the common-law rule; that there is no claim that the dog in question attacked or attempted to bite a person. Appellee contends that the owner, or one who harbors a vicious dog, is liable for the in

juries committed by it, and that the liability is imposed, not because of ownership, but because of possession and the duty to care for the animal. animal. They cite Alexander v. Crosby, 143 Iowa, 50, 119 N. W. 717; Marsel v. Bowman, 62 Iowa, 57, 17 N. W. 176; Sanders 7. O'Callaghan, 111 Iowa, 574, 82 N. W. 969. Appellee concedes that it is the law in this state that at common law the owner of the dog cannot be held responsible for the acts of the dog, unless it is made to appear that the dog was vicious, and that the owner had either actual or constructive notice of its vicious propensities. Brown v. Moyer, supra.

They further contend that the common-law rule is changed by the statute in but two particulars, namely, that it makes the owner alone responsible, and dispenses with proof of scienter, and that in this action it is immaterial whether the defendant was the owner or harborer of the dog; his liability remains the same; and that the difference is the question of scienter, which they contend has been established by the evidence.

2. The dog in question had a right in the highway, un- Animals-right less it was a vi- of dog in highway. cious dog within the meaning of the law, and in that case he would be a nuisance, or perhaps there would be negligence in failing to restrain him, and if the defendant, as the owner or harborer, had knowledge of its vicious propensities, and plaintiff was injured because of such viciousness, defendant would be liable, unless, perhaps, he was excused by the fault of the plaintiff. Ibid.; Alexander v. Crosby, 143 Iowa, 50, 52, 119 N. W. 717. If the dog was not a vicious dog, it follows, of course, that defendant could have no knowledge thereof. Was the dog a vicious dog? Plaintiff's evidence shows that about four times, during the summer, the dog ran out from defendant's yard into the highway and barked or chased automobiles, and on one occasion attempted to bite the wheel. There is

not a word of evidence in the entire record that the dog ever attacked or attempted to bite any person or any domestic animal. On the other hand, a number of witnesses testify to having passed the place hundreds of times, and the dog did nothing. On the occasion in question, plaintiff's husband testifies in greater detail as to what the dog did, and says: "He just jumped off the bank about 4 feet from me, and just as he barked I hit him with the front wheel on the inside."

A. Yes, sir.

Q. And that was, that he barked at the front wheel, and after he did, you struck him with the automobile? A. Yes, sir.

The wife testifies: "He started "He started to bark, and then ran in front of the car, and that is all I saw."

This is the sum and substance of it all. Appellee says in argument: "If a person has a dog in his possession for a considerable length of time and such dog has all that time been in the habit of rushing into the highway, in front of the owner's residence, and of barking at, chasing, worrying, or attacking a passing team in a ferocious manner, a question is presented to the jury to find whether the owner was aware of such habit," etc.

And again: "It is immaterial whether the dog was attacking a person, or some other animal, the liability for the damages remains the same."

But it does not appear that this animal was attacking any person or animal, or chasing or worrying or attacking passing teams, in a ferocious manner. An animal, a horse or team for instance, might be frightened by a dog running at, or biting. Not so with an automobile. Most of the cases are where there was an attack of some kind by worrying or biting, or the appearance of a ferocious attack, and we assume it is for that reason that the definitions for "vicious," or "vicious ani

Iowa,, 179 N. W. 197.)

mal," are not plentiful. One naturally gets the idea that there is an element of savagery or fierceness, ferociousness or mischievousness, as in worrying other animals, as a sheep-worrying dog, etc. In 40 Cyc. 203, note, it is said, quoting from a Georgia case, that "a vicious animal is any individual of a vicious species, or a vicious individual of a harmless species."

And at the same page it is said that a vicious propensity is not confined to a disposition on the part of a dog to attack every person he might meet, but includes as well a natural fierceness or disposition for mischievousness, as might occasionally lead him to attack human beings without provocation. In 2 Cyc. 415, it is said that one may kill a vicious animal in necessary defense of himself or the members of his household, or under circumstances which indicate danger that property will be injured or destroyed unless the aggressor is killed; but it seems that such a killing is justified only where the animal is actually doing injury. See also Marshall v. Blackshire, 44 Iowa, 475. The right to kill is, of course, controlled by the statute more or less; but we are speaking now only of the meaning of the word "vicious." In Merritt v. Matchett, 135 Mo. App. 176, 181, 115 S. W. 1068, an instruction was approved in this form: "The jury are instructed that what is meant by the term, 'a vicious propensity' in an animal, is such a propensity' that the dog might attack or injure the safety of persons without being provoked so to do."

In 4 C. J., at page 104, it is said that under the common law it is incumbent on one complaining of the savage act of a dog to prove its vicious propensity, etc. In Sanders v. Teape, 51 L. T. N. S. 263, cited in note at page 99, in 3 C. J., where a dog playing in a garden jumped over a wall and struck plaintiff, who was digging a hole, it was held that the owner of the dog was not liable. 3 C. J., p. 104, note citing Briscoe v. Alfrey, 61 Ark. 196, 30 L.R.A. 607,