Rollins v. Hedin

DOOLING, J.

Defendants, husband and wife, appeal from a judgment rendered by the court in a trial without a jury for personal injuries incurred by plaintiff in an encounter with a dog owned by defendants. The complaint charged that the dog was “of a ferocious, vicious and mischievous disposition and accustomed to attack persons and possessed of traits making said dog dangerous to persons, all of which was known to said defendants.” The plaintiff’s proof showed that while he was walking along the sidewalk in front of defendants’ residence in the city of San Bruno the dog approached him from behind, seized his trouser leg and twisted around in front of him throwing him violently to the sidewalk. He received injuries to an elbow and knee necessitating hospitalization for 12 days and surgery on both elbow and knee.

At the close of plaintiff’s case the transcript shows the following proceedings:

“Mr. Ross: ... If the Court please, at this time I would like to offer in evidence a certified copy of the City Ordinance of San Bruno, City Ordinance No. 298, known as health and safety ordinance No. 20.

“The Court: You can read it later, if you want. It will be admitted.

“Mr. Ross: . . . (reading)

“ ‘ Section 3. It shall be unlawful for the owner or person having possession of or in charge of any dog or dogs to allow the same to be or remain upon any public street or place in said city without being securely fastened or held by a leash, chain, or rope or cord and led or held by some person or otherwise securely fastened or held. ’ ”

The record shows that this ordinance was introduced and section 3 thereof read without any objection. Appellants baldly state that “ (d)efendants were then precluded from objecting to the introduction of the ordinance.” The record does not

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bear this out. In the absence of any objection to the introduction of the ordinance it is not open to appellants to argue for the first time on appeal that the complaint was not based on a violation of the ordinance. “It is unfair for a party to withhold an objection to a pleading founded upon a defect, which, if pointed out in time might have been remedied by amendment, thereby inducing his opponent to rely upon his pleading as sufficient, until it is too late to correct the defect, in order that he may have the advantage of the fatal defect on appeal.”