Florence D. LITZKUHN, Appellant,
Russell A. CLARK and Anne Louise Clark, his wife, Appellees.
[85 Ariz. 356] Charles Christakis, Phoenix, for appellant.
Charlie W. Clark, Jack C. Cavness, Phoenix, for appellees.
Plaintiff, Florence D. Litzkuhn, appeals from a judgment in favor of defendants-appellees, Russell A. Clark, et ux., based upon an adverse jury's verdict in a dog bite case. We shall hereafter refer to the parties as they appeared in the lower court.
Plaintiff's action was brought under what is commonly called the 'Dog Bite Statute', Ch. 42, L. '52 (now appearing as A.R.S. sections 24-521 to 24-523, incl.). The pertinent sections read:
'Section 1. Liability for damages.
The owner of any dog which shall bite [85 Ariz. 357] any person while such person is in or on a public place or lawfully in or on a private place including the property of the owner of such dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness.
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'Sec. 3. Provocation. Proof of provocation of the attack by the injured person shall be a complete defense to such action.'
The first amended complaint upon which the case was tried, alleges inter alia:
'That on the 21st day of October, 1954, at approximately 10:00 o'clock A.M., a chow dog owned and kept by the defendant leaped and jumped upon the plaintiff, knocking her down to the sidewalk, biting and scratching her on and about her hands, legs and body without provocation.
'That due to said defendants' dog attack, the plaintiff sustained and suffered painful injuries, both external and internal, and was put in a state of shock.'
Defendants' answer asserts that the injuries and damages suffered by plaintiff were directly and proximately caused or
contributed to by (a) the negligence of plaintiff, and (b) by plaintiff's provocation of the attack by the dog. At the conclusion of the evidence the following trial ...