Hagen v. Laursen

• Decision Date: 19 November 1953
• Parties: HAGEN v. LAURSEN et al. Civ. 8086.
• Court: California Court of Appeals Court of Appeals

Page 489

263 P.2d 489

121 Cal.App.2d 379

HAGEN v. LAURSEN et al.

Civ. 8086.

District Court of Appeal, Third District, California.

Nov. 19, 1953.

Hearing Denied Jan. 13, 1954.

Geary, Spridgen & Moskowitz, Santa Rosa, for appellant.

DeCastle & Eymann, Santa Rosa, Toland C. McGettigan, San Francisco, for respondent.

VAN DYKE, Presiding Justice.

This was an action wherein plaintiff sought to recover damages from defendants for personal injuries suffered by her while a visitor upon defendants' property. She suffered injuries when two dogs owned by defendants which were playing about the defendants' premises ran against her, causing her to fall. She secured a judgment from which the defendants have appealed.

It appears that appellants were the owners of two Irish setters, one weighing about 45 pounds, the other about 35 pounds, and both being approximately 5 years old. These dogs were generally kept upon appellants' premises. When appellants were at home the dogs were usually in the basement of the home or on an enclosed porch. They were occasionally let run on appellants' property which was not fenced and so the dogs were on and off the appellants' premises while running about. That was the situation when respondent received her injuries. Appellants and respondent were were neighbors and habitually exchanged social visits. They lived across a road from each other. On the occasion when plaintiff was injured the dogs were frolicking, occasionally going into the road and back to their home grounds. They romped and played with each other; would jump at each other, wrestle, run, roll over, pretend to bite each other, and generally indulge in the antics usual with dogs at play. Their actions were described as the average play of a dog. No one had seen them run into anyone while playing, before respondent received her injuries. They were not shown to have been more boisterous than dogs usually are. There was no evidence that these dogs were vicious. During the years that they had been observed there had been a time when one of them had reared up and placed his paws against a visitor, another when one of the dogs jumped on the shoulder of a man who came upon the premises and who ran. The dog did not bite or injure the man. At another time one of the dogs grabbed a man by the coat sleeve. But these instances were all that could be gathered over the years the dogs had been owned by appellants, and there was no claim, and could be none, that the dogs were shown to have been vicious or apt to attack. In addition, such proclivities, if shown, were not being exercised at the time respondent was injured and were not the cause of injury.

Respondent was well acquainted with the dogs and had often observed them at play. At the time of the accident respondent had seen the dogs playing and while this was going on had gone across the road and on to the premises of appellants, where she stood conversing with a group of people, which included Mrs. Laursen and some relatives of respondent. The dogs were frolicking about, the women were talking; respondent stood with her back toward the area in which the dogs were for the moment at play and did not, therefore, see them approaching her. Others, however, including Mrs. Laursen, saw the dogs coming, but no one said or did anything. One or perhaps both of the dogs while so playing and frolicking ran against the back of respondent's legs at about the knees, causing her to fall sharply to the ground and to suffer a broken hip and various less serious bruises and lacerations. There was nothing in the nature of an attack by either animal.

At the trial much reliance was placed by respondent upon what was claimed to be a violation of a Sonoma County ordinance having to do with the licensing and control of dogs, but in addition thereto it was respondent's theory that appellants, as owners of the dogs, were liable as for general negligence proximately causing her injuries.

We will first discuss this assignment of negligence, it being the contention of appellants here that as a matter of law the record fails to support a finding that they were so negligent.

It is lawful to keep dogs and, speaking generally, an owner or keeper is not liable for damage they do without having knowledge of an abnormal propensity of the dog to commit it. 'There are certain domestic animals so unlikely to do harm if left to themselves and so incapable of constant control if the purpose for which it is proper to keep them is to be satisfied, that they have traditionally been permitted to run at large. This class includes dogs. * * * While it is not impossible to confine dogs to the premises of their keepers or to keep them under leash when taken into a public place, they have been traditionally regarded as unlikely to do substantial harm if allowed to run at large, so that their keepers are not required to keep them under constant control.' Restatement of the Law of Torts, sec. 518, Comment j, p. 40. 'A possessor or harborer of a domestic animal which, because it is of a class unlikely to do harm and difficult to confine, he is privileged to allow to run at large, and which he does not have reason to know to be abnormally dangerous, is not liable for any harm done by it while at large.' Restatement of Torts, sec. 518, subd. (2). 'The actor as a reasonable man is both entitled to assume and required to expect that domestic animals will act in accordance with the nature of such animals as a class, unless he knows or should know of some circumstances which should warn him that the particular animal is likely to act in a different manner.' Restatement of Torts, sec. 302, Comment h. Pursuant to these long-established rules found in the common law and in most, if not all, of the states of the Union, including California, it has always been necessary in a complaint seeking to recover damages for injuries caused by dogs to plead and prove that the injury was caused by some abnormal action, that is, abnormal with regard to the usual actions of these animals and that the owner or keeper knew of a tendency to the abnormality. It was not sufficient to allege the injury caused by the animal and that the owner had been generally negligent in the keeping or the controlling of the dog. 'In the complaint in an action against the owner for injuries caused by his dog, it is essential to allege the vicious character or evil propensity of the dog and the owner's scienter. * * * The dog's bad character or evil disposition is not presumed. The view expressed in Mason v. Keeling, supra. [1699, 12 Mod. 332] that 'the law takes notice, that a dog is not of a fierce nature, but rather the contrary' is generally adopted. A dog is presumed to be tame, docile and harmless until the contrary appears. (Citing cases.) Harming a human being is regarded as contrary to a dog's nature. 'He errs contra naturam suam by biting or any serious misdoing * * *.' Beven, 'The Responsibility at Common Law for the Keeping of Animals,' 22 Harvard Law Rev. 465, 485.' Olson v. Pederson, 206 Minn. 415, 288 N.W. 856, 859. The foregoing was said in a case declaring the insufficiency of the complaint to state a cause of action which alleged that the defendants owned and kept a certain dog and that while plaintiff was lawfully standing on the lawn of her home the dog jumped on her, causing her to fall and sustain personal injury. The same rule applies to cats, as appears from Buckle v. Holmes, 2 K.B. 125, 54 A.L.R. 89, a case brought to recover damages done by a cat in killing fowls on plaintiff's property. The rule is stated in a headnote as follows: 'One who keeps a domestic animal is not rendered liable by the mere fact that the animal does damage in following the natural propensity of its kind to do damage in certain circumstances, unless the animal is one for whose trespasses the owner is liable', it being held in the opinion that dogs and cats were not animals for whose trespasses there was owner liability. See also Brown v. Moyer, 186 Iowa, 1322, 171 N.W. 297, a case where a large dog owned by the defendant ran out into the highway along which plaintiff was proceeding, striking her with such force and in such manner as to throw her violently to the ground. See also Hicks v. Sullivan, 122 Cal.App. 635, 638, 10 P.2d 516, 517, where, quoting from 1 Ruling Case Law 1116, the court approved a statement of the rule as follows: "In case of injury the gravamen of the action is knowledge of the owner that the beast was the possessor of vicious or mischievous propensities. Negligence or lack of care on the part of the owner in keeping or restraining the animal need not be shown." See also ...