Chandler v. Vaccaro

SHINN, P. J.

Action against David V. Yacearo, James M. Yacearo and Thomas R. Yacearo to recover damages for personal injuries resulting from dog bite. Trial was to a jury. Although plaintiffs were nonsuited on their causes of action under the dog bite statute (Civ. Code, §3342), the jury awarded $7,500 damages to Mrs. Chandler and $750 damages to Mrs. Reynolds on their causes of action alleging liability at common law, based upon the responsibility of one who harbors a known vicious dog for injuries suffered by one who is on the premises as an invitee. Judgment was entered on the verdict and the Yacearos appeal.

Appellants operated the Mira Loma Turkey Ranch as a partnership business on a 5-acre tract owned by their father, David Yacearo, Jr. The elder Yacearo resided on the premises and permitted his sons to use the remainder of the tract in return for the payment of property taxes; he was named as a defendant in the action but was not served with process.

On April 11, 1955, plaintiffs made an appointment to purchase a turkey at the ranch. The ladies drove to the premises around noon and parked in the parking lot. They walked up a pathway to the building where turkeys were sold, but as no one was present they returned to their automobile and waited. A few minutes later, Mrs. Reynolds left the ear and proceeded to walk up the pathway toward the store. One dog was lying on the ground about 15 feet away from the path. This one suddenly ran toward her, snarling and barking ; it jumped up on her, whereupon the other two dogs came from somewhere and joined in the attack. Mrs. Chandler rushed to the rescue of Mrs. Reynolds, who was screaming and trying to protect herself with her handbag. Mrs. Chandler was

[788]

also attacked by the dogs. Upon hearing the commotion, appellants’ father ran from the house and warded the dogs off. The ladies were taken to a physician for treatment; their clothes were torn and they were in an hysterical condition. Mrs. Chandler’s injuries consisted of painful bites on her left arm and right breast, while her companion’s back had been severely scratched.

The participants in the attack upon plaintiffs were three large animals, unclassified as to breed, named Poochie, Blackie and Brownie, who lived on the premises. Poochie was the female parent of the other two dogs; at the time of the assault she was between 12 and 14 years old. Appellants’ father testified that he was the owner of the dogs and that he kept them as pets. They were not used as watchdogs. He and Mrs. Vaccaro fed them, looked after them and paid for their licenses. The dogs were kept around the house but they had the free run of the premises except for the turkey pens. Appellants gave similar testimony. The dogs belonged to their father and they neither eared for them nor used them as watchdogs.