Opinion
Page __
__ Cal.App.2d __277 P.2d 413Sadie HILLMAN, Plaintiff and Appellant,v.Rudolph GARCIA-RUBY and Katherine Garcia-Ruby, Defendants and Respondents.Civ. 16104.California Court of Appeals, First District, First DivisionDec. 13, 1954Rehearing Denied Jan. 12, 1955.
Hearing Granted Feb. 10, 1955.
[277 P.2d 414] James C. Purcell, Michael Riordan, San Francisco, for appellant.
Bronson, Bronson & McKinnon, San Francisco, for respondents.
FRED B. WOOD, Justice.
Plaintiff filed this action for personal injuries sustained when a large dog owned by the defendants jumped upon and knocked plaintiff down as she was walking along a sidewalk in the vicinity of defendants' residence. The jury found in favor of the defendants. The sole question is whether or not the jury was properly instructed concerning defendants' obligations toward the plaintiff.
Plaintiff claims that by the rejection of certain of her instructions and the modification of others the court erroneously failed to instruct the jury in accordance with her theory that defendants were liable even in the absence of negligence if the dog had the dangerous propensity of jumping upon people and if the defendants knew or had reason to know of that propensity.
Defendants agree concerning the applicable rule of liability. They say: 'Regardless of the terminology of the theory the owner of a vicious dog is liable for injuries caused by the dog if the owner knew or should have known of the viciousness, Heath v. Fruzia, 50 Cal.App.2d 598 [123 P.2d 560]; Frederickson v. Kepner, 82 Cal.App.2d 905 [187 P.2d 800],' and '[t]he question presented here, then, is simply this: Was the jury instructed that, if defendants knew or should have known that their dog was vicious and plaintiff's injuries were proximately caused by the dog, plaintiff was entitled to recover?'
Defendants differ concerning the import of the instructions of which plaintiff complains. They say that the instructions given on this subject were in conformity with the rule as stated by them. They rely specifically upon the following instructions given by the court: 'It is the duty of a keeper of a dog to inform himself or herself of the habits and disposition of said dog.' (Plt. No. 9, as modified.) 'If the keeper of a dog knows it to have dangerous propensities, he is under a duty to restrain or confine it that it may not exercise its propensities to the injury of others.' (Plt. No. 6.) 'A vicious animal is one having a propensity to do an act dangerous in its character to either person or property or a propensity to do an act that might endanger the safety of persons and property in a given situation.' (Plt. No. 13.) 'The intent with which a dog inflicts injury upon a human being is not material.' (Plt. No. 5, as modified.) 'If the keeper of a dog knows that the dog was accustomed to jump upon human beings, the keeper's liability is not affected by the high character of the dog for mildness among the neighbors.' (Plt. No. 4.) 'If you find from the evidence in this case that the dog in question did jump upon and against plaintiff on the 9th day of March, 1952, then in determining whether or not defendants had notice prior to that time of such a propensity on the part of such dog, you are instructed that if they had notice of such facts concerning said dog which would put a reasonable man on his inquiry and would be apparent to such a reasonable man, then I instruct you that the defendants will be charged with knowledge of the said characteristic on the part of the dog. Before the provisions of this instruction can be applied to the facts of this case the evidence must show by a preponderance thereof that the defendants so charged had the care, custody, and control of said dog.' (Plt. No. 1.)
These instructions, it is true, as claimed by defendants, told the jury that if defendants' dog was vicious and defendants knew [277 P.2d 415] it or should have known it, they were under a duty to restrain or confine it that it might not exercise its propensities to the injury of others, but they did not tell the jury whether that was an absolute duty, or a duty of utmost care, or a duty of ordinary care. Viewed in their context, these instructions spelled out a duty of ordinary care because they were immediately preceded by an instruction that 'A keeper of a dog must use that degree of care to restrain it that an ordinarily prudent person would have used in the same or similar circumstances' (Plt. No. 11, as modified), and immediately followed by an instruction that 'under the law of this state every person is bound, without contract, to abstain from injuring the person or property of another or infringing upon any of his rights, and that everyone is responsible for injury occasioned to another for his want of ordinary care or skill in the management of his property or person. However, defendant was not an insurer of the safety of the plaintiff or the public.' (Plt. No. 31, as modified by the addition of the last sentence.)
The following will serve to illustrate instructions requested by plaintiff which were expressive of her theory of strict liability: 'the keeper of any dog which he knows or has reason to know to have dangerous propensities is liable without wrongful intent or negligence for damages to others proximately resulting from such a propensity' (Plt. No. 2, refused); 'if you find from the evidence in this case: (1) That the dog in question by reason of its nature and instinct was likely to jump upon or against a human being while said human being was traveling upon a public sidewalk, (2) That defendants were the keepers or custodians of said dog, (3) That said defendants knew of said traits or propensities, (4) That said defendants allowed said dog to roam at large on said sidewalk, (5) That said dog did jump upon plaintiff in this action, and as a proximate cause of said jumping, plaintiff was injured, then your verdict must be in favor of plaintiff and against said defendants' (Plt. No. 10, refused); 'you are instructed that where injury is caused by a vicious animal, which at the time of said injury and previous thereto was known by the keeper to be vicious, the keeper is liable as an insurer unless the injured person voluntarily or consciously does something to bring about the injury, and the question of negligence on the part of the owner is immaterial. In such a case it is the duty of the keeper of such vicious animal to protect the public generally, including strangers as well as those dealing with or standing in some relation to the owner, and the only persons excluded from such protection are those who voluntarily or consciously do something to bring about the injury' (Plt. No. 12, refused); 'and if he or she [the keeper of the dog] knows of its vicious or mischievous propensities (if you find that the dog did have such propensities) or by the exercise of ordinary care that fact could be ascertained, then I instruct you that such keeper or keepers are liable for any injuries proximately caused by such animal' (deleted from latter portion of Plt. No. 9).
Some of the instructions which plaintiff requested were based upon the theory of negligence in terms of the duties of the 'keeper of a dog' irrespective of knowledge that the dog has vicious or dangerous propensities. In short, the plaintiff's requested instructions proceeded upon the theory of negligence if the jury found that defendants neither knew nor had reason to believe their dog had dangerous traits but upon the theory of strict liability if they had such knowledge or reason to believe. By refusing some and modifying others, the trial court erroneously applied the negligence principle in both situations. We do not mean that the court should have given plaintiff's every instruction precisely as presented. That would have resulted in some duplication and possibly some inconsistencies. But plaintiff did adequately present her theory of strict liability, which should have been given the jury in some appropriate form. This error, under the circumstances of the case, was prejudicial.
Defendants have offered the suggestion that plaintiff tried the case upon the theory of negligence and should be limited to that theory upon this appeal. They assert that the 'complaint charges [277 P.2d 416] negligence on the part of defendants in permitting the dog to roam at large' and that 'the case was tried and argued on that theory,' citing a portion of the complaint and that portion of the transcript which records the discussion which occurred upon the hearing of defendants' motion for a directed verdict.
The portion of the complaint thus cited merely sets forth the facts extensively enough to cover proof under either of the two theories of liability mentioned. While defendants have not elaborated their views, there seems implied the suggestion that such a complaint limits the pleader to recovery upon the theory of negligence. That is not correct. It has been held, for example, that a complaint is not duplicitous when it pleads facts which support a recovery either upon a common law or upon a statutory theory of liability, Coleman v. City of Oakland, 110 Cal.App. 715, 721, 295 P. 59, or when those facts would support recovery upon the theory either of agency or of express consent. Smith v. McLaughlin, 81 Cal.App.2d 460, 463, 184 P.2d 177.
At the conclusion of the taking of testimony defendants moved for a directed verdict, claiming there was no proof of negligence. Plaintiff's counsel responded with the argument that there are two theories, one that 'if you prove knowledge of a trait or propensity [of causing injury to others], negligence is no longer to be considered'; the other, that, in the absence of such knowledge, 'the keeper of a dog must use ordinary care, as he would with an automobile or anything else * * *.' The court denied the motion and said: 'Now, gentlemen, according to the court's theory, the situation is this. This is a case of negligence; that is, that is the theory of the court, that it is a case of negligence. On knowledge, prior knowledge, I think there is sufficient to go to the jury. It is a question of fact for the jury to determine.' We construe that as a statement of the trial court's view concerning the applicable rule of law, not a statement that such was the sole theory upon which plaintiff had tried the case; especially in view of plaintiff's instructions on each of the two theories mentioned, instructions which the record shows were served upon the defendants and presented to the court at or prior to the commencement of the trial.
The judgment is reversed.
PETERS, P. J., and BRAY, J., concur.