WALTER et ux.
SOUTHERN ARIZONA SCHOOL FOR BOYS, Inc.
[77 Ariz. 142] Darrow & D'Antonio, Tucson, for appellants.
Darnell, Robertson, Holesapple & Spaid, Tucson, by Richard R. Fish, Tucson, for appellee.
PHELPS, Chief Justice.
This is an appeal from a judgment in favor of Southern Arizona School For Boys, Inc., a corporation, defendant-appellee, against C. J. Walter and Constance Walter, his wife, plaintiffs-appellants.
Appellants sued to recover damages in the superior court of Pima County against appellee and one Clifford E. Hamlin, as defendants, based upon the allegations that appellee as principal and Clifford E. Hamlin as agent were the owners, keepers or harborers of a horse (named Stinger) with certain propensities, tendencies and characteristics of a nature to cause injury to mankind; that with knowledge of such vicious propensities they kept and harbored it on the property of appellee; and that on the 8th day of November, 1951, said Clifford E. Hamlin with knowledge of its vicious and malicious habits and without informing appellant C. J. Walter of such vicious habits requested him to ride it. Appellant, an experienced horseman, acceded to the request and after the horse had been saddled, carefully mounted it; that immediately after he
had mounted, Hamlin negligently, carelessly and without warning to appellant released his hold upon the bridle, whereupon the horse reared up and over so as to fall upon appellant causing him severe physical injury. Defendants, in a joint answer, denied generally and specifically all of the allegations of the complaint and alleged that any injury suffered by Walter was caused by or contributed to by him. Later by [77 Ariz. 143] amendment, defendants pleaded assumption of risk.
At the close of the plaintiffs' evidence, the trial court directed a verdict in favor of defendant-appellee and ordered the trial to proceed as to defendant Hamlin, on the theory of an action in negligence. The court withdrew from the jury at that time the consideration of the question of keeping and harboring a vicious horse with knowledge of its vicious and malicious propensities, tendencies and characteristics. It stated in its instruction to the jury as follows:
'* * * Now, I have taken the element about the corporate liability for harboring a vicious horse out of the case, and you no longer have that to consider at all. I think you clearly understand it that the Southern Arizona School for Boys no longer is in any way connected with this case, and that it is solely Walter on one side and Hamlin on the other.
'Walter alleges that Hamlin was negligent in the manner in which he conducted the incident in which Walter attempted to mount the Hamlin horse, and that is the case to be decided by you--was Hamlin negligent or was he not.' (Emphasis supplied.)
The jury returned a verdict in favor of Hamlin and against Walter. Judgment was entered thereon and no appeal was taken therefrom. Therefore, we are concerned here only with the question of whether there was error in directing a verdict in favor of appellee at the close of appellants' case. We are presented with three assignments of error all of which are grounded squarely upon that question.
To determine this issue we must of necessity look to the evidence. It is the law generally and in this jurisdiction that any person who keeps or harbors a domestic animal not normally vicious with knowledge of its vicious tendencies or propensities is liable in damages to another for any injury caused by it unless it is shown that the injured person, with knowledge of its viciousness, did something to such animal which caused it to injure him. Arizona Livestock Co. v. Washington, 52 Ariz. 591, 84 P.2d 588. It is also the law that knowledge of the agent or servant of the vicious tendencies of the animal is imputable to the principal if the care or control of the animal is within the scope of the agent's employment. United States Fidelity & Guaranty Co. v. Millonas, 206 Ala. 147, 89 So. 732, 29 A.L.R. 520. Therefore, if the evidence discloses that the horse in question did possess vicious tendencies or propensities which were known to Hamlin, the knowledge thereof was imputed to appellee, Perazzo v. Ortega, 32 Ariz. 154, 256 P. 503; Navajo-Apache Bank & Trust Co. v. Willis, 21 Ariz. 610, 193 P. 297 and the question of whether the horse was vicious should have been submitted to the jury.
Let us now examine the evidence bearing upon the vicious traits, tendencies [77 Ariz. 144] or propensities of the horse claimed by appellants to have been proved. In our search for the answer to this question where the appeal is from a judgment based upon an instructed verdict for the defendant, we are charged with the duty of viewing all evidence touching upon the question where it is in conflict in the manner most favorable to the plaintiff. Nichols v. City of Phoenix, 68 Ariz. 124 at page 129, 202 P.2d 201 at page 204; Cope v. Southern Pac. Co., 66 Ariz. 197, 185 P.2d 772.
First, we have the testimony of appellant C. J. Walter, a recognized horseman, who testified that immediately upon mounting the horse and the releasing of the reins by Hamlin the horse reared up, fell over on his back and rolled on Walter on the left side; that he at all times held a slack rein on the horse. This testimony, however, was disputed by Hamlin who stated the
horse did not rear up and fall backwards but that Walter became overbalanced as he attempted to mount. His right rein was too short and he jerked the bit causing the horse to go ...