Baley v. J. F. Hink & Son
| Decision Date | 18 May 1955 |
| Citation | 283 P.2d 349,133 Cal.App.2d 102 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Harriet BALEY, Plaintiff and Appellant, v. J. F. HINK and SON (a corporation), and Doris G. Potter, Defendants and Respondents. Civ. 16271. |
John D. Martin, Ricksen, Freeman & Johnson, Oakland, for appellant.
Barfield & Barfield, San Francisco, for respondent J. F. Hink & Son.
Harris, Darter & Older, Oakland, Cyril Viadro, San Francisco, of counsel, for respondent Doris G. Potter.
This is an appeal by plaintiff from a judgment of nonsuit in an action for personal injuries sustained while plaintiff was a customer in the department store of respondent, J. F. Hink and Son, in Berkeley. A nonsuit was likewise granted on plaintiff's suit against the defendant Doris Potter, a customer in the aforesaid store, whose leashed dog was alleged to have been the cause of appellant's fall from which she suffered serious personal injuries.
Appellant's complaint against respondent Hink alleged that appellant was a business invitee; that respondent Doris Potter, owned a dog which she knew to be livery, mischievous and frolicsome; that respondent store negligently consented to respondent Potter bringing said dog into the store and into an aisle thereof when appellant was present and negligently consented and allowed respondent Potter to 'guide and control said dog in such a careless, negligent and unlawful manner, that it was carelessly, negligently and unlawfully caused, permitted and allowed by respondent Potter, to collide with the trip' appellant and throw her to the floor with great force and violence. It was further alleged that appellant was unable to arise, and that respondent Hink was negligent in providing her with assistance, thereby exacerbating the injuries sustained in the fall. Respondent Hink generally denied all the charging allegations and pleaded contributory negligence and unavoidable accident. Respondent Potter likewise denied the allegations of the complaint and pleaded negligence of respondent Hink as the sole proximate cause; negligence of appellant as the sole proximate cause; contributory negligence and unavoidable accident.
The case was presented before a jury, but motions for nonsuit in favor of both respondents were granted at the close of appellant's case on the ground that there was no evidence of negligence on the part of respondent Hink proximately causing or contributing to the injuries of appellant and none of the part of respondent Potter proximately causing or contributing to the happening of the accident.
Although appellant pleaded the unruly and mischievous nature of the dog, there was no attempt made at the trial to show the disposition of the dog or any previous knowledge of such disposition by either respondent. Appellant's theory at the trial was simply negligence in bringing the dog to an improper place and carelessly controlling and guiding it while there. Most of the cases involving dogs that have been previously decided in this state are not helpful, since they are concerned with proof of prior knowledge of eccentricity, traits, or disposition of the particular animal.
Appellant testified that she entered the respondent store with the intention of making a purchase at about 5 p. m. She made a purchase in the Baby Department in the rear of the store. She then went to the gift wrapping desk at the left of the store to pick up her purchase. From there the had walked about ten or fifteen feet up the center aisle when she suddenly fell to the floor. She said that she felt something hit her legs and she went down. Appellant was unable to arise. Immediately when she landed she saw respondent Potter with the dog on a leash to her right. The dog appeared to be a springer. Respondent Potter told her to lie still until help would come. People from the store brought ammonia and placed it under her nose as she felt she would faint. They did not move her from the floor, nor did they put any covering over her. She thought it was about a half hour before the ambulance arrived to take her to the hospital.
Just prior to the accident appellant had been proceeding to meet her sister and was looking straight ahead. She was not looking at the floor, but the floor was within her range of vision. Appellant was wearing glasses with corrective lenses which brought her vision to normal. She would glance to the side at the merchandise as she moved along the aisle. Appellant was walking when she felt something hit her legs and she went down. She did not feel it with just one of her legs. She belivered the dog was reddish-brown in color. Upon objection the court struck out the following answer given in cross-examination.
The answer was stricken on the ground that it was the opinion and conclusion of the witness. Appellant contends that this was erroneous stricken, for although appellant had not previously seen the dog, she was capable of identifying what hit her by faculties other than sight.
Respondent Potter testified that the dog was a cross between a springer and a cocker and that it was completely black in color. She had it on a leash about 6 feet in length attached to the dog's collar. She was in the vicinity of appellant when she fell. Respondent Potter testified as follows:
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Respondent Potter testified that Mrs. Baley was unable to get up and she told her that the sensible thing to do was to go over to Herrick Hospital and have it X-rayed. Respondent stated that she had no conversation when anyone about appellant falling over her dog, and that she did not tell Mrs. Baley or any police officer that she was sorry about it, and not to worry that everything would be taken care of. She said that she was involved in this thing but she was not responsible, that she was positive her dog and nothing to do with it.
Respondent Potter followed appellant to Herrick Hospital. Appellant's sister and nephew arrived while appellant was still in Herrick Hospital. It was then decided to send appellant by ambulance to Permanente Hospital. Respondent Potter drove her own car over to Permanente and waited in the reception room.
Miss Potter also testified that appellant was in the respondent store about one half hour after the accident before the ambulance arrived, but stated that the employees brought out a stretcher and placed her on it, covering her with a blanket which she threw off, saying she was too warm. There were several people of Hink's around, one brought a pillow, others brought smelling salts and water.
Miss Potter testified to a conversation with Mr. Winston from the Johnson Bureau of Investigation. He asked her if she knew Mrs. Baley was still in the hospital and then asked if she carried insurance to cover this sort of thing. She said she carried insurance but didn't know if it covered this sort of thing and referred him to her insurance representative. The investigator then told her that she had said everything would be taken care of. She explained that Mrs. Baley had been worried about her car being overparked, and she had said, 'Everything will be taken care of; parking, overparking is not a serious crime.' She also said 'Everything will be taken care of, just relax and take it easy.' The investigator told Miss Potter, that the police report showed that she said everything would be taken care of, and she replied that she had only answered police questions as to her name, address and telephone number. She did not talk to the police about the dog.
Arthur Winston, the investigator, testified that he endeavored to find out from Miss Potter what she meant by 'everything would be taken care of', and that 'she said that her dog had caused Mrs. Baley to fall.' He had previously introduced himself, had told her where he was from and had given her his card.
Harry Cook, a nephew of appellant, saw Miss Potter at Herrick Hospital. She told him that 'she couldn't explain the action of the dog, how it did happen, that it was just an unfortunate action of the dog getting loose.' She then said that she didn't mean loose in the way she said it. She admitted that the dog was involved, but did not give him any explanation of how the dog was involved.
Respondent Potter when called under Code of Civil Procedure, § 2055 stated that she did not talk to Mr. Cook about the dog tripping Mrs. Baley, that she did not talk to him about the dog at all, that she purposely avoided talking about the accident. He asked her what kind of dog it was and she told him to was a cross between a spaniel and a springer.
Dr. Thomas Ivers testified that appellant was admitted to Permanente Hospital on November 7, 1951, and that she gave him a history of having fallen in Hink's Department Store when a dog ran between her legs. She developed pneumonia and surgery had to be delayed until her recovery from that illness. The doctor stated that the failure to cover appellant while she...
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