(dissenting).
I disagree with the majority and would affirm on all issues.
Facts
Defendants, Mr. and Mrs. Zink, were the owners of a pet dog named Rambler. On March 15, 1975, Mrs. Zink gave permission to two of her children to take Rambler and another dog to a park in Alamogordo. The children kept the dogs leashed. They were followed by other unleashed dogs, including a female dog in heat. When they arrived at the park, the children tied Rambler to the center of a kiddie slide. The eldest child went to play with John’s oldest sister who had brought him to the park. The youngest of defendants’ children played with John on the slide.
The younger child testified that Rambler, although tied to the center area of the slide, was near the female dog in heat. John, who was then about 3V2 years old, fell off the slide between Rambler and the female dog in heat. The female dog ran off. Rambler bit John about the face, causing the injury.
Mr. Zink testified that prior to this incident, he had been told by the manager of the animal shelter in Alamogordo that Rambler had been identified from several dogs by a 2V2 year old child as the dog which had done the biting. Mr. Zink was uncertain of the validity of the incident and, in fact, never mentioned it to Mrs. Zink. Mrs. Zink testified she did not know of the incident and, in fact, made no inquiry of the dog’s whereabouts during the ten days he was under observation at the animal shelter.
Directed Verdict in Favor of Mrs. Zink
At the close of all the evidence, the trial court directed the verdict in favor of Mrs. Zink on the grounds that reasonable minds could not differ that she had no knowledge of any dangerous propensity of Rambler. Plaintiffs contend this was error, claiming that as a joint owner with Mr. Zink, his knowledge was imputed to her.
A directed verdict is proper only if reasonable minds cannot differ as to the conclusion to be reached under the evidence or permissible inferences to be drawn therefrom. If reasonable minds can differ, the question is one for the jury and it is error to direct the verdict. Smith v. Loos, 78 N.M. 339, 431 P.2d 72 (Ct.App.1967); Jones v. New Mexico School of Mines, 75 N.M. 326, 404 P.2d 289 (1965). On appeal, this Court must view the evidence and all reasonable inferences therefrom in “ ‘the light most favorable to the party resisting the motion, and must disregard all conflicts in the evidence unfavorable to the position of that party.’ ” Skyhook Corp. v. Jasper, 90 N.M. 143, 560 P.2d 934 (1977).
As a general rule, notice of the vicious propensities of an animal to one joint owner or keeper is notice to all such owners or keepers. Ayers v. Macoughtry, 29 Okl. 399, 117 P. 1088 (1911); Halm v. Madison, 65 Wash. 588, 118 P. 755 (1911); Barber v. Hochstrasser, 136 N.J.L. 76, 54 A.2d 458 (1947); and Swain v. Tillett, 269 N.C. 46, 152 S.E.2d 297 (1967). The question of viciousness is usually one for the finder of fact who may infer such a nature from one act. Perkins v. Drury, 57 N.M. 269, 258 P.2d 379 (1953).
Here, the trial court ruled as a matter of law that Mrs. Zink had no notice of the vicious propensities of her dog, Rambler. For the purposes of this dissent, I will assume the trial court erred in so ruling. However, even so, the error was harmless. At the conclusion of the case against Mr. Zink the court submitted the following instruction to the jury:
Instruction No. 10
The Plaintiff claims that he sustained damages as a result of being bitten by defendant’s dog and that the proximate cause thereof was the ownership of a dog which was vicious or had a natural inclination or tendency to be dangerous, and the owner had knowledge thereof. .
The jury found for Mr. Zink. In order to reach this verdict, they necessarily had to find that Rambler was not vicious or did not have any natural tendency to be dangerous, and/or Mr. Zink had no knowledge of this viciousness or the inclination to be dangerous. Since Mrs. Zink’s knowledge was vicariously dependent upon that of Mr. Zink, it could be no greater than his.
The trial court erred in directing the verdict in favor of Mrs. Zink, but this error was harmless. Harris v. Quiones, 507 F.2d 533 (10th Cir. 1974).
Accordingly, I dissent.