Perazzo v. Ortega

• Citation: 241 P. 518,29 Ariz. 334
• Decision Date: 10 December 1925
• Docket Number: Civil 2401
• Parties: PAOLO PERAZZO, Appellant, v. JOSE ORTEGA, Appellee
• Court: Supreme Court of Arizona

241 P. 518

29 Ariz. 334

PAOLO PERAZZO, Appellant, v. JOSE ORTEGA, Appellee

Civil No. 2401

Supreme Court of Arizona

December 10, 1925

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Judgment reversed and cause remanded for new trial.

Messrs Alexander & Christy and Mr. Hess Seaman, for Appellant.

Mr. D A. Fraser and Mr. Albert R. Smith, for Appellee.

OPINION

LOCKWOOD, J.

Jose Ortega, hereinafter called plaintiff, brought suit for damages against Paola Perazzo, hereinafter called defendant alleging substantially as follows:

"That on and before the 28th day of April, 1924, the defendant owned and kept a vicious black dog, well knowing him to be of vicious and mischievous disposition, and accustomed to worry domestic animals and attack and bite mankind; that on said date while plaintiff was lawfully proceeding . . . upon the Tempe road, a public highway, riding upon his bicycle, the said vicious black dog of defendant ran from under the fence of the yard of defendant . . . and viciously, mischievously, and ferociously attacked and bit the plaintiff, and threw him off his bicycle with such force and violence as to fracture his left elbow. . . ; that, as the direct result of said attack, plaintiff has suffered great pain and anguish, and has had his left arm permanently disabled, and has had to employ the services of a physician, . . . and has had to incur hospital expenses, . . . all to his damage in the sum of $5,000 actual damages and $2,000 punitive damages. . . ."

Defendant answered with a general demurrer and general denial. The case was tried to a jury, which returned a verdict in favor of plaintiff in the sum of $5,000 compensatory damages and $1,283.50 punitive damages. Judgment was duly rendered thereon and a motion for new trial made. The court ordered that plaintiff remit all punitive damages, or that a new trial would be granted, and plaintiff complying with the order of the court, the motion for new trial was duly overruled, whereupon defendant appealed to this court, filing a supersedeas bond.

There are some nine assignments of errors which we will consider in their order. The first is that the complaint alleges plaintiff was attacked and bitten by a "black" dog, whereas, plaintiff's own testimony is that he was bitten by a "black and white" dog, and that therefore there is a material variance between the complaint and the evidence. It appears that the dog in question was actually produced in court by the defendant, was identified by the plaintiff, and that, with the exception of white spots on the tip of its tail, its forehead, and its breast, the rest of the animal was admittedly black in color.

If there were any claim that defendant had been misled as to the identity of the dog involved, there might be some merit in the contention, but, when all the parties agreed on the particular animal referred to in the complaint, we think to hold the minute spots of white appearing on an otherwise black animal created a variance sufficient to cause the case to be reversed would be a technicality of refinement equal to that of the famous character in Hudibras who "could a hair divide between the south and southwest side." There is no merit in the first assignment.

The second assignment is that the court erred in refusing to strike out the testimony of Mrs. Rosaria De Lambert on the ground that it was hearsay. The witness had testified to a number of things, part of which she saw herself, and part of which she heard from other persons, and counsel for the defense, after the testimony had been completed, made the following motion:

"I move to strike out all the evidence of this witness with reference to this dog attacking this colored woman as hearsay."

Part of the evidence was admissible and part was objectionable, but it was not the duty of the court to separate it, and, counsel having made his motion in these general terms, it was properly overruled.

The third assignment of error is that the court erred in refusing to direct a verdict for the defendant on the ground that the evidence was insufficient in three respects: First, that it does not show defendant was the owner and keeper of a vicious black dog; second, that it does not show that he was the owner and keeper of a vicious black or black and white dog, with knowledge of its viciousness; and, third, that it does not show the dog was accustomed to worry domestic animals, and to attack and bite mankind. The first point has been discussed by defendant more particularly under his sixth assignment of error, and we will consider it in the same place.

The second point involves two questions: First, Was there sufficient evidence that the dog in question was vicious? And, second, if so, did defendant have either direct or imputed knowledge thereof? There is no evidence that the animal, before this occasion, actually succeeded in biting any passers-by. There is, however, evidence of one specific attack upon a person, and that thereafter the dog was kept tied up, and the general testimony of the witnesses Charles Donofrio and Rosaria De Lambert that when the dog was loose he would bark at dogs and anything, and would at times go out into the road if the other dogs went out.

There is no rule of law which requires any particular number of instances of unprovoked attack or injury to show a vicious disposition in an animal, and the jury may draw such inferences from a single act, especially if it be an attack upon a person. Kittredge v. Elliott, 16 N.H. 77, 41 Am. Dec. 717; Coggswell v. Baldwin, 15 Vt. 404, 40 Am. Dec. 686; Cockerham v. Nixon, 33 N.C. 269; Arnold v. Norton, 25 Conn. 92; Cuney v. Campbell, 76 Minn. 59, 78 N.W. 878; Mann v. Weiand, 81 Pa. 243. Nor need it be shown the animal has actually bitten people. As is said in McCaskill v. Elliott, 5 Strob. (S.C.) 196, 53 Am. Dec. 706:

"In every case for mischief done by an animal, . . . the cause of action is the defendant's breach of social duty in not effectually preventing a thing within his control from doing the harm complained of, when his previous information ought to have shown that the thing was likely to do such harm if not prevented. . . . But under the second count alleging a ferocious and mischievous disposition, whatever was calculated to establish the dangerous propensity of the animal in sufficient degree tended to support the allegation, and was properly left to the jury. That a dog has once bitten a man is a circumstance from which the probability of its biting another may be inferred; but the same inference may be drawn with equal confidence from other indications of the dog's disposition. Indeed, attempts before made by a dog that had never succeeded in actually biting may give more full assurance of danger to be apprehended from it than could exist as to another dog that under some peculiar circumstances had used its teeth upon man. To require that a plaintiff, before he can have redress for being bitten, should show that some other sufferer had previously endured harm from the same dog, would be always to leave the first wrong unredressed, and to lose sight of the thing to be proved, in attention to one of the means of proof. If nothing short of a dog's once having bitten can show its dangerous nature, even the owner of a dog known to have been bitten by a rabid animal may not be answerable unless on some previous occasion the dog has inflicted the dreadful injury, which he was bound to have apprehended and prevented."

So, also, in Johnson v. Eckberg, 94 Ill.App. 634, where the court says:

"It is not the law that the defendant must have been notified of an unjustifiable biting of some person before defendant could have notice he had a propensity to bite mankind. If the dog, to the knowledge of appellant, had made vicious attacks upon persons without actually biting them, that would have been sufficient to put him upon notice of a vicious propensity of the dog."

We think there was sufficient evidence to go to the jury as to the vicious nature of the dog.

But it is necessary not only that the dog be vicious, but that defendant have notice thereof. While there is a conflict of authorities upon this point, the better and more modern rule is that the knowledge need not be actual, but may be imputed and notice to the wife while she is, with the knowledge of the husband, in the actual custody or control of the dog, is notice to the husband. Smith v. Royer, 181 Cal. 165, 183 P. 660; Ayers v. Macoughtry, 29 Okl. 399, 37 L.R.A. (N.S.) 865, 117 P. 1088; Halm v. Madison, 65 Wash. 588, 118 P. 755; Barclay v. Hartman, 2 Marv. 351, 43 A. 174; Boler v. Sorgenfrei (Sup.), 86 N.Y.S....