Bauman

Gail Bauman, who was approximately three and one-half years of age at the time of her injury, and her father, Russell H. Bauman, brought suit against the defendant owners of a dog which bit Gail on the Beau jean home premises. While the pleadings and, to a certain extent, the pretrial order seem to implement issues under the old vicious animal theory and the defenses adjusted to that theory, it is the conclusion of counsel for both appellants and respondents that the case was tried, and that the appeal turns exclusively, on the provision of section 3342 of the Civil Code.

In this connection, appellants ’ opening brief states: “Plaintiffs’ case was tried before the jury on the theory that California Civil Code section 3342 was applicable and that the defendants were liable under the terms of said section.

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. . the only issues before the jury under the present ease were: whether said minor child was bitten by the dog; whether she was on the premises lawfully of the defendants.”

While the defendants plead assumption of the risk and contributory negligence (Gomes v. Byrne, 51 Cal.2d 418 [ 333 P.2d 754 ]), they do not press these defenses and did not at the trial as there was no…