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District Court of Appeal, First District, Division 1, California.


Civ. 9441.

Decided: August 02, 1935

F. H. Dam, of San Francisco, for appellants. Kirke La Shelle, Jr., of San Francisco, for respondent.

This is an action on behalf of a minor by her guardian ad litem for damages for personal injuries. The father of the minor joins as plaintiff to recover special damages. Unless otherwise indicated, the word “plaintiff” herein will refer to the minor. The complaint alleged that the defendant conducted and maintained a riding school for ladies and girls; that on the date mentioned in the complaint defendants, for a valuable consideration, furnished and hired to the plaintiff a certain horse referred to as “Koko” for the purpose of horseback riding; that the defendants knew or should have known that the horse was not a gentle saddle horse and was not safe or suitable or fit for the plaintiff to ride; that the horse was unruly, vicious, and dangerous, and would suddenly plunge and jump and bolt and become uncontrollable; that these characteristics were unknown to plaintiff; that when plaintiff rode the horse she was thrown violently from the saddle, resulting in the injuries set forth in the complaint.

The complaint was so worded that the contract for hiring, from which an implied warranty of suitability may be inferred, is pleaded. In the same cause of action the complaint contains allegations of negligence. A general demurrer to the complaint was overruled. The case could have been tried upon the theory that it might have been a tort or a breach of a contract upon an implied warranty. Seemingly the latter theory was adopted by consent of counsel and will be therefore so considered on appeal. A general verdict and four special interrogatories reading as follows were submitted to the jury: “For your guidance and by request of counsel, the court will submit to you certain forms of general verdicts and also certain interrogatories to be answered by you. The interrogatories read as follows after the title of the court and cause: 1. At the time of the accident was the horse ridden by the plaintiff Evelyn Dam a vicious, dangerous and unsuitable horse for the purpose of riding by plaintiff? Your answer is yes or no and signed by your foreman. 2. If the answer to question No. 1 is in the affirmative, did the defendant, Miss Cress, have actual knowledge of such vicious and dangerous propensities of the horse in question prior to the accident in question? Your answer should be yes or no and signed by your foreman. 3. If the answer to question No. 1 is in the affirmative, did the plaintiff, Miss Evelyn Dam, have knowledge of the vicious and dangerous propensities of the horse in question prior to the accident? Your answer should be yes or no and signed by your foreman. 4. If the answer to question No. 2 is in the negative, should the defendant Miss Cress have known of the vicious and dangerous propensities of the horse in question prior to the time of the accident? Your answer should be yes or no and signed by your foreman.” The second and third proposed special findings were dependent upon an affirmative answer to the first interrogatory. The fourth question could not be answered unless the first should be answered in the affirmative, and the second in the negative. The jury found on the first special finding for the respondent and returned a general verdict accordingly. From a factual standpoint, this would seem to be a complete answer to the issues involved.

The stronger weight of authority in California is that scienter on the part of a defendant is necessary, but considering the character of this case and the theory upon which it was tried, the law as approved in eastern and southern states will be adopted as applicable to the issues herein. Knowledge of the viciousness of an animal is essential except when the animal is hired, and in such an instance when the bailee seeks to recover for injuries the plaintiff's case is complete if injuries are shown and it is proved that defendant did not use ordinary care in furnishing an animal for the purpose for which it was hired. The maxim of res ipsa loquitur does not apply in cases of this character. The respondent was not a common carrier. She furnished horses to certain people for certain purposes. Ordinary care is the test to be used. Due regard should be given to the selection of the horse, the purpose of its use, and the ability of the bailee to control horses generally if this fact is ascertainable. However, the bailor is not required to exercise more than that degree of care which, under similar circumstances, a prudent person would exercise. Once a horse passes from the bailor to the bailee, then the bailee controls its movements. Plaintiff had attended the riding school for thirteen months. At a period prior thereto, for some six or seven years, she had the experience of riding horses on a ranch. Plaintiff was classified as not an advanced, but a good rider. Respondent assured plaintiff that the horse Koko was a perfectly gentle horse and safe for plaintiff to ride.

The jury determined that at the time of the accident the horse ridden by plaintiff was not a vicious, dangerous, and unsuitable horse for the purpose of riding. Plaintiff had been riding the animal for approximately an hour. The horse acted in a perfectly normal manner. Traversing an almost level trail, the horse gave a leap. Witnesses testified the first unusual thing that occurred was plaintiff's loud scream. Whether this scream was prior, simultaneous, or subsequent to the leap of the horse was a circumstance for the jury to take into consideration. A careful reading of the entire transcript fails to disclose the definite cause of the horse's sudden action. Eliminating the one leap, the horse had shown no signs of unsuitability. Based only upon the circumstances surrounding the accident, the jury would not have been justified in determining that this animal was a vicious, dangerous, or unsuitable horse for the purpose of riding by plaintiff. The warranty implied in furnishing a horse for hire does not extend to some action on the part of the animal or the rider that a careful and normal person could not foresee. There is no evidence that the respondent knew the horse would give a sudden leap. The fact that on this particular occasion a horse misbehaved would not be sufficient to prove that the horse was dangerous or vicious or that respondent was not warranted in furnishing the horse to plaintiff. Cooper v. Layson Bros., 14 Ga. App. 134, 80 S. E. 666. The bailor is not liable for injuries sustained by the bailee if the animal's conduct was the result of the happening of an event, occasioned by the bailee, which would cause an otherwise gentle animal suddenly to become vicious. Conn v. Hunsberger, 224 Pa. 154, 73 A. 324, 25 L. R. A. (N. S.) 372, 132 Am. St. Rep. 770, 16 Ann. Cas. 504. A bailor would not be responsible for an injury which results not from the bailor's negligence but from some agency over which the bailor had no control. No one is responsible for the result of an unavoidable accident which was not and could not reasonably have been anticipated. Finney v. Curtis, 78 Cal. 498, 21 P. 120; Clowdis v. Fresno Flume, etc., Co., 118 Cal. 315, 320, 50 P. 373, 62 Am. St. Rep. 238. Whether an accident could have been anticipated is a question of fact for the jury to determine.

One way to maintain plaintiff's case was to prove that on previous occasions this horse had demonstrated characteristics indicating it would be dangerous for a student of the experience of plaintiff to ride on the day in question, and that respondent was lacking in the use of ordinary care and did not act as a reasonable and prudent person would act under all of the circumstances in permitting plaintiff to use this horse. In other words, that the respondent was negligent in not ascertaining whether the horse was a dangerous, vicious, or unsuitable horse for plaintiff to ride. The evidence fails to show prior vicious or dangerous conduct on the part of the horse in question. Koko had been purchased by the respondent approximately two months before the accident. She was “told the horse was an excellent saddle horse but had been used as a stock horse and had some ability as a jumper.” Prior to the date of the accident respondent had given to other students, with this horse, ordinary riding lessons and also some lessons in hurdling. If the respondent used this horse for hurdling and permitted students to ride the horse for that purpose, she could not have been impressed with the fact that the animal in an ordinary lesson would be of a vicious nature, otherwise she would not have permitted students to ride the horse over the trails. It cannot be said that it was incumbent upon respondent to inform plaintiff that the horse was a jumper, unless there was reason to believe that the horse would jump when not facing a hurdle.

Fifty acts, statements, rulings, or decisions are assigned as either misconduct on the part of the court or counsel, or as prejudicial error. The enumerated cumulative alleged assignments of misconduct on the part of court and counsel seem to be frivolous. The trial judge made unnecessary statements at times, but there was no apparent prejudice against either plaintiff or respondent in the entire record. The court's remarks include matters favorable to plaintiff, such as complimenting a plaintiff witness upon leaving the stand for her ready and responsive answers. Six instructions are attacked, and special emphasis is placed upon the claim that the special finding is against the evidence. Unless the claimed errors are pertinent to the special finding or general verdict, they will be disregarded herein. It is unnecessary, for example, under the answer given to the first interrogatory, to consider the evidence or instructions relative to findings two, three, or four unless the rulings or conduct of the court or counsel on this subject prejudiced the jury in the determination of the question involved in the first special finding.

Many of the assignments of alleged misconduct on the part of the court or counsel for respondent arose from the persistency of plaintiff's attorney in repeating questions to which objections had been sustained. The following is a fair sample: “The Court: The Court makes the same ruling, which is the third ruling on that particular question, which will be enough.” Another instance was an attempt on the part of the attorney for plaintiff to show respondent's acknowledgment of responsibility for the accident. This appears in the transcript as follows: “Q. Before you left her home that day you told her mother, did you not, that you were insured, and that you would see that the accident was settled for?” If the court had permitted this question, it would have been error against the respondent. Squires v. Riffe, 211 Cal. 370, 295 P. 517. The attorney for plaintiff withdrew the question and requested the court to admonish the jury to disregard the asking of it, and subsequently attempted to present questions tending to show acknowledgment of responsibility on behalf of respondent, which brought forth an admonition from the court directed to plaintiff's attorney. Taking all of the circumstances into consideration, the admonishment was justified. Some forty odd other rulings are called to this court's attention, but after careful consideration, we find little or no merit in them, and it does not appear that contrary rulings would have resulted in a different verdict.

Appellant also appeals from an order refusing to strike the memorandum of costs from the files. The cost bill is not included in the clerk's transcript on appeal. The motion to strike appears in a bill of exceptions, contains the body of the cost bill and the affidavit thereto, but does not set forth the title of court and cause. The bill of exceptions contains the number of the action and the names of the parties plaintiff and defendant. We must assume, in the absence of evidence to the contrary, that the cost bill contained the same title of court and cause. The affidavit attached to the cost bill recites in part that the “costs and disbursements are true and correct and have been necessarily incurred in this cause.” The affidavit is silent as to the names of the defendants or the plaintiffs, but “this cause” can refer only to the case designated by the title of court and cause. At the time of trial the case against all defendants, except as to defendant Cornelia Van Ness Cress, was dismissed. Plaintiff was sufficiently informed as to the claim of costs, and the party defendant presenting the same. The motion to strike the cost bill from the files was properly denied.

Judgments and orders appealed from are affirmed.

WARD, Justice pro tem.

We concur: TYLER, P. J.; KNIGHT, J.

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Docket No: Civ. 9441.

Decided: August 02, 1935

Court: District Court of Appeal, First District, Division 1, California.

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