Menches v. Inglewood Humane Society

MOORE, P. J.

This action is for damages resulting from the bite of an unruly dog which had been impounded and for

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a time kept by defendants before its sale and delivery by them to plaintiffs. The question for determination is whether, after payment of the impoundage and the acceptance of the animal by plaintiffs at their home, defendants are liable under the dog bite statute which imposes liability upon the owner of a vicious dog when it bites another.

Plaintiffs’ ground for recovery was stated in two causes of action: by the first they alleged that the defendants knowing it to be vicious and accustomed to bite mankind did negligently harbor a vicious dog and suffer it to go at large without being properly guarded or confined; that by reason of such carelessness of defendants in permitting the animal to run at large, and with knowledge of its ferocity, plaintiff Blaine was attacked and bitten by the dog to her damage. In the second count, it is alleged that plaintiffs agreed to purchase a dog from defendants; that it was vicious and accustomed to bite mankind, which facts were known to defendants and unknown to plaintiffs; that when defendants brought the animal to plaintiffs’ home, they negligently failed to inform plaintiffs of such cruel and furious temper of the beast and allowed it to run at large without proper restraint; that by reason of such negligence Blaine received great bodily injury to her damage in the sum of $25,000.

At the conclusion of the trial, the court peremptorily instructed the jury to return a verdict for defendants. Thereafter a motion for new trial upon the statutory grounds was granted because “the court erred in taking certain questions from the jury.”

In order to warrant a judgment in favor of plaintiffs, it was necessary for the court to find in accordance with the allegations of either or both of the two counts. While there was an attempt in the second count to allege a different ground for recovery, in substance it is identical with the first in that both of them charge defendants with negligence in permitting a vicious dog to run at large unattended.

In the first count the allegation of the untamed qualities of the dog is accompanied by the statement that such propensities were within the knowledge of defendants; in the second count it is charged that defendants negligently failed to advise plaintiffs that the dog was vicious.