Perazzo v. Ortega

• Decision Date: 24 May 1927
• Docket Number: Civil 2560
• Citation: 32 Ariz. 154,256 P. 503
• Parties: PAOLO PERAZZO, Appellant v. JOSE ORTEGA, Appellee
• Court: Arizona Supreme Court

256 P. 503

32 Ariz. 154

PAOLO PERAZZO, Appellant v. JOSE ORTEGA, Appellee

Civil No. 2560

Supreme Court of Arizona

May 24, 1927

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Affirmed.

Messrs Alexander & Christy and Mr. Robt. McMurchie, for Appellant.

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

OPINION

McALISTER, J.

This case is before the court a second time, the first appeal having resulted in an order directing a new trial. See 29 Ariz. 334, 241 P. 518. In the second trial and upon practically the same pleadings and evidence the plaintiff recovered judgment for the same amount as in the first, and from this and the order denying his motion for a new trial the defendant appeals.

The substance of the complaint is that on April 28th, 1924, while plaintiff was riding west on the Tempe Road, a public highway in Maricopa county, Arizona, upon his bicycle, a vicious black dog, which the defendant owned and kept and knew to be ferocious and accustomed to worry domestic animals and attack and bite mankind, ran from under the fence of the yard of defendant, which was contiguous to said Tempe Road, and attacked and bit the plaintiff and threw him from his bicycle with such force and violence as to fracture his left elbow that as a result of this attack he suffered great pain, had his left arm permanently disabled, was compelled to employ a physician and incur hospital bills, and has been prevented from working, all to his damage in the sum of $8,000. The answer was a general demurrer and a general denial, and the jury returned a verdict in favor of the plaintiff for $5,000.

Three errors are assigned, but they raise only these two legal propositions, namely: First, the evidence is insufficient to establish scienter on the part of the defendant, that is, knowledge of the dog's ferocious disposition; second, the damages awarded are excessive and the verdict of the jury the result of passion and prejudice.

Before the plaintiff can recover it must appear, in addition to the fact that he was injured as alleged, that the dog was vicious and that the defendant not only owned or kept it but had knowledge of its vicious propensities. Two of these propositions, namely, that the plaintiff was injured substantially as alleged and that the dog was ferocious and vicious, are not contested though not admitted, but the allegation that defendant knew of such viciousness is, the contention being that the testimony does not sustain it. Appellee contends, however, that the evidence establishes such knowledge, not merely constructively but even expressly, and in support of this contention directs our attention to a number of excerpts therefrom. This, however, is contradicted in part, but the fact that there is a conflict regarding it is immaterial since the inquiry is whether the testimony is sufficient to support the finding implied in the jury's verdict that the defendant knew the dog's vicious propensities and not whether it preponderates on one side or the other of this proposition. The court instructed the jury that it was incumbent upon the plaintiff to prove that the defendant had such knowledge before he could recover; hence, if there is sufficient evidence to support its conclusion, regardless of that to the contrary, its decision is binding on us, since the weight of the testimony is a matter wholly within its province.

Concepcion Gastelo, who at the time was living just east of the defendant in one of his houses, testified as follows:

"I had a conversation with her (Mrs. Perazzo) in the kitchen. Mr. Perazzo was present. She told me that the black dog had bitten a Mexican. Then Mr. Perazzo came out and said that these dogs were going to cost him lots of money and that if he loses the case he was going to take it over to Italy. Every time I would go down there the black dog would bark, and I told Mrs. Perazzo to tie up the dog, that it would bite some person. Prior to the latter part of April, 1924, I never did see this black dog chase any person. Prior to the time of the attack upon Mr. Ortega in the latter part of April, 1924, Mrs. Perazzo in the presence of Mr. Perazzo told me about another attack made upon a person by this black dog. . . . I don't remember whether Mr. Perazzo was there when Mrs. Perazzo told me that that same dog had bitten or tried to bite a woman."

Georgiana Stubbs, who lived in the neighborhood, was crossing the bridge on the Tempe Road just west of the defendant's house in February, 1924, when three dogs ran out of defendant's yard through a hole in the corner of the fence. She testified:

"One was a black dog, one was white and the other kind of reddish looking. The black dog was at the front and the other two behind. They made a break at me as though they were going to bite me, and I screamed, and the folks at the store run out and hollered at the dogs, and I run back on the bridge, and the dogs turned around and went back in the hole in the yard. . . . I know they tied them up after that. Coming from my home I had to cross the bridge to go to Lambert's. When I screamed . . . they stopped; I broke and run. I was off the bridge when the dog made a break at me. I run and clumb up on the bannister. After getting the clothes I went back across the bridge; the dog didn't come back."

Mrs. Rosario de Lambert, who lived across the road almost in front of Perazzo's, testified:

"The Perazzos have three dogs, one is black, the other white, and the other brown. . . . I saw when she was screaming there by the bridge. She got on top of the bridge there, the railing. I don't know whether they bit her or not. I know Mrs. Perazzo come out there. The dog went back in the yard after that and went inside the house. . . . This black dog I know it is there, and I know it belongs to theme. They take care of it. He is tied up most of the time, and when they turn him loose he gets vicious. . . . What I mean by saying that the dog is vicious is when they turn him loose or he gets loose he barks at dogs and everybody else."

In the light of the foregoing the jury was clearly justified in finding that Perazzo had knowledge of the dog's vicious disposition. The testimony of Concepcion Gastelo and Rosario de Lambert, if true, and this was for the jury to determine, shows conclusively that Mrs. Perazzo had such knowledge, and, as stated in the former opinion, the law is that the knowledge of the wife is imputed to the husband. The language used therein 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 actual custody or control of the dog is notice to the husband."

Appellant contends, however, that even though the court adheres to the doctrine of imputed notice as announced at that time, the trial court erroneously instructed the jury in this action by stating to it "that the owner or keeper of a dog may be charged with notice of its vicious propensities by reason of his wife's knowledge thereof." The objection to this statement is that it fails to include within its purview the idea contained in the foregoing language that before the notice received by the wife can be imputed to the husband, it should be received by her "while she is, with the knowledge of the husband, in the actual custody or control of the dog," but instead tells the jury in effect that notice to the wife under any circumstances is chargeable to the husband. This instruction was given in the first trial identically as it appears here and specifically approved in the former opinion;...