Opinion
2-13-1958
J. Oscar Goldstein, P. M. Barceloux, Burton J. Goldstein, James William Morgan, Chico, for appellant. Albert M. King, Oroville, for respondent.
Alfred W. GOMES, Plaintiff and Appellant,
v.
Selma F. E. BYRNE, sometimes known as Mrs. J. D. Byrne, Defendant and Respondent. *
J. Oscar Goldstein, P. M. Barceloux, Burton J. Goldstein, James William Morgan, Chico, for appellant.
Albert M. King, Oroville, for respondent.
WARNE, Justice pro tem.
Plaintiff appeals from a judgment in favor of the defendant and from an order denying his motion for a new trial in an action wherein he sought damages alleged to have resulted when he was bitten by defendant's dog. Since the order denying a new trial is not appealable the purported appeal from said order is dismissed. Code Civ.Proc. sec. 963.
Plaintiff's cause of action is founded upon the so-called Dog Bite Statute. Civ.Code sec. 3342.
It appears from the record that at the time of the occurrence in question, plaintiff, a salesman for the Fuller Brush Company, while canvassing in the neighborhood of defendant's residence, called at defendant's home and handed her a catalogue. It was the first time he had ever called at defendant's home or on defendant. Defendant is a practical nurse and uses the premises as a private nursing home, and the house and yard are surrounded by a wire fence with a gate and path leading to the front door. As plaintiff approached the gate, the dog, a toy shepherd, followed him along the inside of the fence for about 50 feet, barking continuously all the way, and when he entered the gate the dog bit him on the right lower leg causing a puncture wound and superficial abrasions. No signs were posted on the premises indicating that peddlers or solicitors were unwelcome, nor any sign warning of a vicious dog.
On the afternoon of the following day, plaintiff again called at defendant's home and at that time defendant bought face powder and moth preventative from him, not because she wanted the merchandise, but because she was sorry the dog had bitten him.
The trial court found 'that plaintiff * * * was not a business visitor or invitee on the premises * * *; that at said time and place the business on which plaintiff was engaged was in no way connected with the business conducted by defendant on said premises,' and that plaintiff was guilty of negligence and assumption of risk.
Section 3342 of the Civil Code provides: 'The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, * * *. A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property * * * upon the invitation, express or implied, of the owner.'
Plaintiff contends that a person who calls at a residence to offer goods for sale or commences negotiations therefor is bestowing a mutual benefit upon himself and the householder and, therefore, is a business visitor and an invitee. He also contends that contributory negligence short of kicking, teasing, or otherwise provoking the dog, is not ordinarily a defense of the Dog Bite Statute, and that there is no assumption of risk as a matter of law where there is no proof that plaintiff had notice or knowledge of the dog's evil propensities. We do not believe that these contentions are sound.
In Smythe v. Schacht, 93 Cal.App.2d 315, 209 P.2d 114, 118, it was pointed out that the Legislature did not intend to make the liability of the owner absolute and render inoperative certain principles of law such as assumption of risk or wilfully inviting injury, which have long been established as a part of our law. The court stated: 'While the Dog Bite Statute does not found the liability on negligence, good morals and sound reasoning dictate that if a person lawfully upon the portion of another's property where the biting occurred should kick, tease, or otherwise provoke the dog, the law should and would recognize the defense that the injured person by his conduct invited injury and therefore, assumed the risk thereof.'
In the case at bar, the hostile conduct of the dog in pursuing and barking at the plaintiff as he walked along the outside of the fence toward the gate surely was notice to plaintiff of the dog's probable evil propensities and of the existence of a dangerous situation should one enter upon the enclosed premises. Nothwithstanding, plaintiff, in the face of such an apparent danger, chose to enter upon the premises, and in so doing he voluntarily exposed himself to the hazard of being bitten by the dog. It may not be said that his entry through the gate did not provoke the dog into attacking him. Under such circumstances we conclude that the doctrine of the assumption of risk applied and the trial court properly so held.
Whether plaintiff was a business visitor or an invitee on the premises was a question of fact which the trial court determined adversely to plaintiff's position. Such determination finds support in the record and is binding upon this court. Butcher v. Queen City Iron & Metal Co., 99 Cal.App.2d 25, 221 P.2d 265. The supporting facts are: Plaintiff had never called at defendant's home or on defendant before, nor up to the time of the occurrence had he negotiated with her in any way. Plaintiff's call was merely for the purpose of handing her a catalogue with the expectation that defendant would make a purchase when he again called on her at some future date. Further, his mission was not in any way connected with defendant's personal business of running a nursing home and there was no element of any benefit to defendant by reason of his presence on the premises.
The judgment is affirmed.
VAN DYKE, P. J., and SCHOTTKY, J., concur. --------------- * Opinion vacated 333 P.2d 754.