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District Court of Appeal, Fourth District, California.


Civ. 2095

Decided: June 12, 1939

Fenton Garfield, August J. O'Connor, and George J. Hider, all of Los Angeles, for appellants. Gray, Cary, Ames & Driscoll, of San Diego, and W.H. Jennings, of La Mesa, for respondents.

The respondent La Mesa Post No. 282, American Legion, Department of California, a corporation, hereinafter designated “Legion Post”, as a part of certain festivities in the city of La Mesa, in celebration of the burning of certain Mattoon District and other bonds, sponsored a pet parade and invited the general public to witness the display. The appellants, who were not to be participants in the parade, appeared upon the school grounds where the parade was to be formed. Mrs. Barnett accounts for her presence on the school grounds in this manner: that her sister, Mrs. Culver, purchased some red caps; that she, with her daughter, accompanied her sister in delivering them to her sister's children who were to participate in the parade. They remained on the school grounds thereafter for a period of 20 to 30 minutes before the time of the injury. While they were on the grounds and before the time the parade started, the appellants Marion R. Barnett and Sally Ann Barnett were struck by a palomino horse which was owned by the respondent Fred Slocum and was being ridden by the respondent Herbert Slocum. The palomino horse had been registered by a Mr. Levy, a subcommitteeman of the Legion Post, as an entrant in the parade about 20 to 40 minutes before the accident hereinafter referred to occurred. As a result of the accident the appellant Marion R. Barnett sustained various injuries and the appellant Sally Ann Barnett was slightly bruised. Appellants thereafter brought this action to recover damages for their injuries, naming as the defendants the Legion Post, the owner, and the rider of the horse. Their complaint contained two counts. The first alleged that the injuries were caused by the negligence of the respondents, and the second alleged that the horse which caused the injuries was a vicious, obstreperous animal. In each count it was alleged that appellants were invitees of the defendants at the time of the accident. The respondents denied the allegations and set up the defense of contributory negligence. Respondents separately moved for nonsuit. The trial court granted the motions.

It follows that the question primarily presented by this appeal is: Did the appellants present to the trial court any evidence sufficient to justify either (1) a finding that the palomino horse was known by respondents to be an “obstreperous and vicious” animal; or (2) a finding that the respondents were negligent in the course of conduct adopted by them in the handling of the animal, or in preparing for the parade, and that this negligence proximately caused the injuries received by appellants?

The questions presented also involve the status of appellants, under the undisputed evidence, as to their presence on the school grounds, to determine the degree of care and duty owed to appellants by respondents. Complaint is also made respecting the ruling of the trial court excluding certain proffered evidence.

Where the plaintiff alleges in the complaint two separate causes of action for negligence, one for injury caused by a vicious domestic animal kept, harbored or owned by the defendants, which defendants knew to be vicious, and the other for injury caused by the negligent performance of duty in the care and handling of such animal, the prevailing rule is this: In order to enforce the liability of the owner or keeper of the vicious domestic animal for injuries inflicted thereby to another person it must appear that the animal was in fact vicious and that the owner had knowledge of its viciousness, either actual or imputed. As to the allegation of injury caused by the negligent performance of duty, proof of such negligence is essential to a recovery. Knowledge by or notice to a servant of the viciousness of the master's animal, with respect to which he is charged with no duty, is not notice to the master, but the knowledge of a servant to whom an animal is intrusted, of its vicious or ferocious disposition, is the knowledge of the master, sufficient to render him liable for injuries caused by such animal while in the custody or control of such servant. Clowdis v. Fresno Flume & Irr. Co., 118 Cal. 315, 50 P. 373, 62 Am.St.Rep. 238; Gooding v. Chutes Co., 155 Cal. 620, 102 P. 819, 23 L.R.A.,N.S., 1071, 18 Ann.Cas. 671; Barrett v. Metropolitan Contracting Co., 172 Cal. 116, 155 P. 645; Ficken v. Jones, 28 Cal. 618; Haneman v. Western Meat Co., 8 Cal.App. 698, 97 P. 695. The mere fact that the animal became unmanageable and injured the appellants, is not sufficient to prove it vicious or generally unsafe (Finney v. Curtis, 78 Cal. 498, 21 P. 120), nor is it sufficient proof of viciousness to detail the behavior of the animal under extraordinary circumstances.

It has likewise been held that when a domestic animal is rightly at the place where the injury occurred, the owner is not liable for injuries unless the viciousness of the animal and knowledge of such fact on the part of the owner are shown. Looney v. Bingham Dairy, 70 Utah 398, 260 P. 855. If, however, the owner is guilty of negligence in handling the animal, he may be liable, regardless of scienter, provided such negligence in handling is the proximate cause of the injury.

In the light of these general rules, let us examine the evidence. The viciousness of the horse as reflected in the record of the evidence may be summarized as follows:

One witness, Ted (a young boy participant), testified that he observed the palomino horse, together with about 20 or 30 other horses, assembled on the school grounds awaiting the formation of the pet parade that was to be exhibited in the city streets. The school grounds were enclosed. While there assembled, he noticed all the horses, over a period of about one-half to three-quarters of an hour. His testimony is as follows:

“Q. Did you notice any of the other horses in the group backing up or switching around? A. No.

“Q. All stood perfectly still, did they, except this one? A. Not perfectly still. Horses usually walk around. This buckskin horse was exceptionally bad. *

“Q. Tell the ladies and gentlemen of the jury * what you saw about this horse. A. * The horse cut up a couple of times before Mrs. Barnett was hurt. * I saw this horse go out and make a circle and hit Mrs. Barnett and go around a wagon around here and back of the back-stop into the fence before they could stop him. *

“Q. How was he acting before he ran into Mrs. Barnett? A. Several times he acted the same way. * He wasn't controllable.”

His testimony as to the actual conduct of the horse as distinguished from his opinion of that conduct was exceedingly meager.

The court held in Marks v. Columbia County Lumber Co., 77 Or. 17, 149 P. 1041, that opinion evidence that a horse was not a safe one was inadmissible. The context of the entire testimony shows that even appellants' witness meant only that the horse was more restless than the average, and that he did not mean by his language to indicate that the horse had a mean disposition or was vicious as that term is generally applied to animals.

Another witness (a young boy) related the horse's conduct as follows: That the horse “had been acting up as Ted said” and that when an effort was made to line up the horses for the parade the palomino “would keep bolting out”.

Appellants' third witness (another boy 15 years old) said: “Well, that horse among all the rest, why you would notice it because the most of the rest—well, they were fairly quieted down and the owners were not having a hard time with them, but this one, it seemed to be kind of skiddish and didn't seem like it was ever around a crowd like that before, and it was jumping around and it wouldn't stand still and just moving all the time, side-stepping and kind of jumping and cutting up all the time.”

The fourth witness (a 14–year-old boy) testified the horse was “acting up”, and “side-stepping and plunging until it finally whirled and reared and dashed over to where it injured Mrs. Barnett”.

Mrs. Culver testified that the horse “was making a disturbance to the extent that it would draw the attention of the by-standers to the group of horses. Each time this disturbance would occur, I would turn from my children in the wagon and look back to the horses and as near as I can recall it was sufficient to call my attention twice before he finally bolted from the group of horses, leaving them and striking my sister down.” Her statement continued:

“Q. What was the horse first doing when you noticed it? A. I am quite a ways from the horse. Whatever he did caused the other horses to move back.

“Q. You didn't see the horse? A. I did after I turned around.

“Q. After you turned around what did you see? A. I don't know what horses do, but this horse was either standing up or putting his feet down somewhere else or backing up or swinging around. I know nothing about horses.

“Q. Did that frighten you? A. Not where I was.

“Q. Did Mrs. Barnett say anything to you about the horse? A. I cannot say that Mrs. Barnett did.

“Q. Did she say to you it was a bad horse or shouldn't be here or something of that kind? A. No, sir.”

She also testified that Levy made a statement after the injury that “I should have taken that horse out of the parade.”

The only other witness who testified as to the conduct of the horse was the appellant Marion R. Barnett, whose sole statement on the subject was as follows: “I saw the horse before it struck me down. I noticed it rearing and whirling and backing around causing a great deal of trouble among the other horses, and I saw it then once and again I noticed the disturbance about 10 or 15 minutes before I was struck. We were at a good distance from the horse and I never thought but what we were perfectly safe.”

There was no evidence of any character that the horse had ever before misbehaved in any fashion. It must be borne in mind that only those horses classified as “pets” were to participate. The trial judge said, in summarizing the evidence: “I don't believe that the fact that this horse reared and sidestepped and whirled at times in the 20 to 40 minutes before the parade started, without any danger, so far as the evidence shows at least, to any one on account of those preliminary passages, was any notice to anyone that it was a vicious horse. * My understanding of the matter is that a horse that will do a little prancing and rearing and whirling around once in a while is the kind of a horse that is desirable for a parade. I never saw a plow horse in a parade in my life. * The law doesn't call a horse vicious because he rears and sidesteps. A horse that doesn't do that once in a while isn't a very good riding horse as a matter of fact.”

In Haneman v. Western Meat Co., supra (hearing denied in the Supreme Court), the evidence showed two previous kickings by a horse to which was attached the name Kicking Bill. The court held the evidence insufficient to show that the horse was vicious and said [8 Cal.App. 698, 97 P. 696]: “The best trained horse may for the first time kick or run away. To hold the owner of such animal liable it must be shown that such owner failed in some duty to the party injured. In this case it is not shown that the horse was possessed of any characteristic vice, or that the defendant knew of any such vice.” And the court cited the old adage that “every dog is entitled to his first bite before he becomes a biting dog”.

We see no reason to disturb the holding of the trial court in granting a nonsuit in reference to the first count.

As to the second count, it must be remembered that the mere occurrence of the accident is in itself no more proof of negligence on the part of respondents than it is proof that the horse was of a vicious character. Appellants, by the first count of their complaint, assume the burden of proving that the injuries were caused not by an unavoidable accident or by fault of anyone, but rather by reason of some negligence of the respondents. Yet an examination of the entire record shows that there is no evidence which would justify finding respondents guilty of that lack of care and duty required, for it seems clear from all the testimony that an ordinarily reasonably prudent person would not have foreseen and anticipated the danger to appellants from the palomino horse. According to the undisputed testimony of all witnesses, including the appellant Marion R. Barnett and her sister, the horse was from 70 to 90 feet from appellants. An ordinarily reasonably prudent person would believe that there would be no danger to persons that distant from a horse which was simply restless and uneasy, not at home in a crowd, and showed no other signs of danger. Even appellant Marion R. Barnett, after testifying that she saw the horse, said: “We were at a good distance from the horse and I never thought but what we were perfectly safe.” In other words, both Marion R. Barnett and Mrs. Culver saw everything the respondents saw. They knew exactly how far they were from the horse and they didn't think they were in any danger. Yet appellants now argue that the Legion officials who, in the very nature of things, could not possibly have seen any more than appellants, saw, or have had any greater knowledge, should from the same facts have determined that appellants were being endangered by the horse. It must be presumed, in the absence of any evidence to the contrary, that the riders of the various horses in general, and Herbert Slocum in particular, were fit and proper persons to be intrusted with the care of the various horses which they rode. In the absence of at least some evidence that they were incompetent, there was clearly no duty imposed upon the Legion Post to provide other and additional horsemen. Appellants were invited only to view the parade from the streets along which it passed and were not invited to come on the school ground prior to the commencement of the parade. Nevertheless, they voluntarily exposed themselves to whatever dangers were attendant upon the formation of the parade. Respondents having provided a safe place from which appellants might observe the parade, were not bound to so manage the formation that no harm could possibly come to anyone who like appellants came uninvited upon the formation ground. The invitation extended by the Legion Post to assemble on the school grounds for the formation of the parade was directed only to participants. Appellants were not participants. Therefore, they were not invitees on the school grounds at that particular time within the meaning of that term. The appellants' complaint alleges that they were invitees. The evidence fails to establish this fact. Herzog v. Hemphill, 7 Cal.App. 116, 93 P. 899; Schmidt v. Bauer, 80 Cal. 565, 22 P. 256, 5 L.R.A. 580; Bush v. Weed Lumber Co., 63 Cal.App. 426, 218 P. 618; Rooney v. Woolworth, 74 Conn. 720, 52 A. 411; sections 6.750–6.770, School Code; Aguilar v. Riverdale Cooperative Creamery Ass'n, 104 Cal.App. 263, 285 P. 889.

It was held in Means v. Southern California R. Co., 144 Cal. 473, 476, 77 P. 1001, 1 Ann.Cas. 206, that in order to sustain a complaint for actionable negligence, the proof must show the duty of defendant to protect the plaintiff from injury, the failure to discharge it, and the resulting injury. The absence of proof of any of these is fatal to a recovery. Where the evidence failed to sustain the averments of the complaint, and showed that the plaintiff entered the premises as a mere licensee without invitation, express or implied, to whom the defendant owed no duty to keep the premises in a safe condition, but merely to inflict upon him no wanton or wilful injury, which injury was not shown, no right of action is sustained by the evidence. See, also, Kirkpatrick v. Daminakes, 15 Cal.App.2d 446, 59 P.2d 556. We feel that the trial court was also justified in holding that the evidence was not sufficient to establish the lack of duty and care required.

Appellants also urge that the judgment of nonsuit should be reversed because of alleged error in excluding the proffered testimony of one Mrs. Reid to the effect that she had told Mr. Levy that the palomino horse should be removed from the parade. Assuming for the purpose of argument, that there is sufficient evidence in the record to justify the inference that Levy was an agent of the respondent Legion Post so that the post would be bound by any knowledge that he received, nevertheless it was not error to exclude the proffered testimony for at least two reasons: (1) The offer of proof made by appellants did not indicate that the proffered testimony would show that notice was given to the respondents that the horse was vicious or obstreperous; and (2) even assuming that the evidence if admitted would have shown such notice was given, nevertheless its admission could not have affected the decision. The offer of proof was as follows: “Mr. O'Connor: At this time, may it please the court, the plaintiffs offer to prove by Mrs. Reid that she had a conversation with Mr. Levy, who was a member of the committee of defendant La Mesa American Legion Post particularly charged with the care and supervision of these horses and the arrangement of the participants in the parade; that Mrs. Reid saw Mr. Levy and told him that he should remove or take out of this parade this horse that was driven by the Slocum boy who is a defendant in this action.” This was the only offer of proof made by the appellants and it is clearly insufficient to support their present argument. If Mrs. Reid merely told Mr. Levy that he should remove the horse from the parade and no more, neither Mr. Levy nor the respondent Legion Post received from such statement any information as to the alleged “vicious propensities” of the horse. They did not offer to prove that she stated any reason for her request or even that she had any reason for making it. For aught that appears in the record, she may have asked Levy to remove the horse in an endeavor to see to it that some other horse might win the prize in the parade, or for a number of reasons.

In view of our previous holding that the facts proved were not sufficient to justify a finding that the horse was in fact, prior to the accident, a vicious and obstreperous animal, the rejection of the proffered opinion or statement would not be error resulting in prejudice to appellants. It is not sufficient proof of viciousness to detail the behavior of the animal under the extraordinary circumstances here presented. Finney v. Curtis, 78 Cal. 498, 21 P. 120. It follows that the trial court was justified in granting the respondents' motion for a nonsuit.

Judgment affirmed.

GRIFFIN, Justice.

We concur: BARNARD, P.J.; MARKS, J.

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