Northon v. Schultz

California Court of Appeal Jan 27, 1955 No. Civ. 16143Published

Before: Dooling

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Holding. The court held that the evidence was sufficient to submit to a jury the question of whether the defendants were liable for injuries caused by their dog, as the complaint sufficiently alleged the elements of absolute liability for keeping a dog with known dangerous traits.

Issues

Whether the complaint sufficiently stated a cause of action for absolute liability despite being framed in the language of negligence.
Whether the evidence presented was sufficient to survive a motion for nonsuit regarding the defendants' knowledge of the dog's dangerous propensities.

Disposition. reversed

Quotations verified verbatim against the opinion

“The elements needed to be pleaded and proved are knowledge of a trait in a dog dangerous to the safety of others and injury to another as a result of such trait.”

“We are satisfied that the evidence was sufficient to go to the jury.”

DOOLING, J.

Appellant was seriously injured when she was knocked down by a dog belonging to respondents while a visitor in their home. She appeals from a judgment of nonsuit.

Appellant, who is the sister of respondent John R. Schultz, had gone to visit in his home on January 1, 1951. On January

she was coming out of the bedroom to go to the bathroom. Respondent Mrs. Schultz opened the door leading to the basement and the dog, which had been in the basement, dashed into the living quarters and ran into the back of appellant’s legs throwing her violently to the floor. Appellant was unaware of the presence of the dog until it ran against her. The dog was a cocker spaniel about 8 months old.

The keeper of a dog who has knowledge that it possesses traits which may make it a source of danger to other persons is subject to an absolute liability to another who is injured by the dog as a result of such traits.

(Hicks

Sullivan,

122 Cal.App. 635, 638 [10 P.2d 516]; Rest. Torts, § 509.)

Respondents raise the objection that the complaint proceeds on the theory of negligence and not of absolute liability. The complaint is framed in the language of negligence but we are satisfied that its allegations are sufficient to state a cause of action on the theory of absolute liability. The elements needed to be pleaded and proved are knowledge of a trait in a dog dangerous to the safety of others and injury to another as a result of such trait. The complaint alleges that for a long time prior to January 2, 1951 “defendants and each of them knowingly and intentionally did carelessly and negligently cause and allow said dog ... on occasion, to jump upon the persons of various guests and invitees ...” If respondents did this they had knowledge of the habit of their dog of jumping upon others.

The proof of scienter came entirely from the testimony of respondent Mrs. Schultz. On an appeal from a nonsuit this testimony must be construed most favorably for plaintiff. Mrs. Schultz at the trial tried to minimize the habit of their dog of jumping upon persons, as a harmless playfulness. However portions of her deposition taken before the trial

[490]

Northon v. Schultz

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DOOLING, J.

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