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Arizona Livestock Co. v. Washington

Supreme Court of Arizona

November 28, 1938

ARIZONA LIVESTOCK COMPANY, a Corporation, Appellant,
v.
W. D. WASHINGTON and MABELLE F. WASHINGTON, His Wife, Appellees

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.

Messrs. Favour & Baker, and Mr. A. M. Crawford, for Appellant.

Messrs. Patterson & Eastvold, for Appellees.

OPINION

Page 589

[52 Ariz. 593] LOCKWOOD, J.

This is an action by W. D. Washington and Mabelle F. Washington, his wife, hereinafter called plaintiffs, against Arizona Livestock Company, a corporation, hereinafter called defendant, for damages on account of injuries it is alleged Mrs. Washington received as a result of the negligence of the defendant. Judgment was rendered in favor of plaintiffs for $12,500, and after the usual motion for new trial was overruled, this appeal was taken.

According to the undisputed facts of the case, Mrs. Washington was very seriously injured by an attack of a vicious burro, while she was residing in the town [52 Ariz. 594] of Ash Fork, in northern Arizona. It is not contended by defendant that her injuries were not severe, nor that the amount of the verdict is excessive compensation therefor, but it is urged most strenuously that it was not legally responsible for the acts of the animal which injured her. The real issue in this case is whether the evidence fairly sustains the conclusion reached by the jury that defendant was the owner, keeper or harborer of the burro which caused the injury to Mrs. Washington, and that, to defendant's knowledge, it was of such a vicious and mischievous disposition that it was negligence for the defendant to allow it to run at large in and about the town of Ash Fork.

The general rule of law in regard to domestic animals not normally vicious is that the owner, keeper or harborer of the animal is liable for injury done by it if it is, in fact, vicious, and the owner knows of its propensities to do mischief. Perazzo v. Ortega, 29 Ariz. 334, 241 P. 518; Id., 32 Ariz. 154, 256 P. 503. It is also the law that the knowledge of the vicious nature need not be actual but may be imputed. Perazzo v. Ortega, supra. So knowledge of such propensities by the employees of a corporation, when obtained in the course of their duties as such employees, is imputable to the corporation. Clowdis v. Fresno Flume & Irr. Co., 118 Cal. 315, 50 P. 373, 62 Am. St. Rep. 238; Barrett v. Metropolitan Cont. Co., 172 Cal. 116, 155 P. 645. The question before us then is whether the evidence is sufficient to justify the jury in finding (a) that defendant was the owner, keeper or harborer of the burro in question at the time of the accident, and (b) was its nature so vicious, to the knowledge of the defendant, that it was dangerous to allow it to run at large in and about the town of Ash Fork.

[52 Ariz. 595] Defendant strenuously denies that it ever owned or harbored the burro. The evidence, however, in our opinion would fairly justify a finding by the jury that it both owned and harbored it, in the legal sense of the term. The record shows the burro, which was commonly known in that part of the country as "Blue Boy" was being used by the Colin Campbell Livestock Company in its sheep business, in the year 1923. In 1930 the Northern Arizona Securities Company, which is in reality the present defendant under a previous corporate name, had acquired all of the capital stock of the Campbell Company, and a division of certain of the assets of the last-named company was made with the Campbell brothers during that year. The defendant, in this division of assets, acquired certain burros, though it does not appear positively that "Bule Boy" was among the

Page 590

number. Later on, in October, 1933, and for some time thereafter, the same burro was being used by the Grand Canyon Sheep Company in its business, the record showing that this last-named company was owned by defendant. There is also evidence in the record that employees of the defendant were seen driving the burro out of the town of Ash Fork. The continuance of conditions once shown to have existed is presumed and ownership of property proved to have been in one is supposed to there remain until the contrary appears. State v. Dexter, 115 Iowa 678, 87 N.W. 417. There is no affirmative evidence in the record that the animal was not owned by defendant, except a letter from the president of defendant to Mr. Washington, shortly after the accident, in which he stated:

"Your letter is the first intimation that we have had that the burro was the property of our company. I have never understood this to be the case, and if you can convince me that the burro is the property of our [52 Ariz. 596] company I shall be glad to meet you and discuss the matter of settlement."

We think that the jury was authorized by this record to find that defendant was the owner and harborer of the burro at the time of the accident.

The next question is, assuming defendant to have been the owner and harborer of the burro, had it such knowledge of its vicious propensities that it was negligence to permit it to run at large on the range in and about Ash Fork. A burro is, to the common knowledge of all residents of the west, ordinarily one of the most gentle and inoffensive of animals, but there are cases when animals of this type become a menace to human beings, and the more so because of their usual reputation for "peace and quietude." It is, therefore, necessary in an action for damages like this to show that the owner had such knowledge of the character of the particular animal as to make it negligence for it to allow the animal to run at large. It would extend this opinion to undue length to discuss all of the evidence on the issue of scienter. It is sufficient to say that we think the jury was authorized to find therefrom that the defendant ...


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