Ellsworth v. Elite Dry Cleaners, Dyers and Laundry

• Decision Date: 20 September 1954
• Citation: 274 P.2d 17,127 Cal.App.2d 479
• Court: California Court of Appeals Court of Appeals
• Parties: Evelyn J. ELLSWORTH, Plaintiff and Respondent, v. The ELITE DRY CLEANERS, DYERS AND LAUNDRY, Inc., a California corporation, etc., Defendants, George D. DuNah, Appellant. Civ. 20137.

Page 17

274 P.2d 17

127 Cal.App.2d 479

Evelyn J. ELLSWORTH, Plaintiff and Respondent, v. The ELITE DRY CLEANERS, DYERS AND LAUNDRY, Inc., a California corporation, etc., Defendants George D. DuNah, Appellant.

Civ. 20137.

District Court of Appeal, Second District, Division 2, California.

Sept. 20, 1954.

Rehearing Denied Oct. 6, 1954.

Eugene S. Ives, Los Angeles, for appellant.

Roland Maxwell, Paul H. Marston, Richard W. Olson, Pasadena, for respondent.

FOX, Justice.

This is an action to recover damages for personal injuries resulting from a dog bite. Judgment was rendered against defendant DuNah, from which he appeals.

In her amended complaint against The Elite Dry Cleaners, Dyers and Laundry, Inc., a corporation, hereinafter referred to as Elite, and Does 1 to 10, plaintiff alleged that: 'On or about October 26, 1951, in the City of Pasadena, the defendants were the owners and keepers of a certain vicious dog, to wit: a Doberman Pinscher named Eric, which said dog was accustomed to pursue and bite mankind.' Elite filed an answer, admitting ownership of the dog. Defendant DuNah, served as Doe No. 1, filed an answer 'admitting' that Elite was the owner and keeper of the dog. He denied, however, generally and specifically, all other portions of the above quoted allegations.

At the opening of the trial it was stipulated that at the time plaintiff was bitten she was employed by Elite, was on duty in the course of her employment, and had received an award through the Industrial Accident Commission under the compensation policy that Elite carried. The complaint was thereupon dismissed as to Elite on the ground of lack of jurisdiction. The trial proceeded, however, against defendant DuNah.

Elite was a closed corporation, being owned by defendant DuNah, who was vice president in charge of production, and his two brothers. Each received an annual lump sum allowance of $1,200 to cover entertainment, small expenses and incidentals. Some four years before this incident, after a talk with his brothers, defendant DuNah decided to get a dog for their protection. He selected Eric, then approximately a year old, and paid $100 for him. He claimed this came out of his annual expense allowance. The license records of the city of Pasadena listed him as the owner of Eric, and gave his residence address. Eric was kept, however, at Elite's plant--'in the day-time he had a bed by a door that is close to' Mr. DuNah's desk * * * 'out in the workroom' * * * and 'was tied part of the time * * * At night he was allowed to roam in the plant * * *' Mr. DuNah testified that either he or the night watchman fed the dog. He denied he ever requested employees to feed him. Plaintiff, however, testified that upon a number of occasions, when he was going to be absent from the plant, Mr. DuNah had requested her to purchase food for the dog and to feed him, and that he gave her the money therefor. Mr. DuNah, however, testified that the corporation paid for the dog's food. He regularly took the dog for a morning walk.

Mr. DuNah testified that about two weeks after he brought Eric to the plant he 'posted a notice on the time clock not to feed or pet the dog.' This notice remained for 'possibly two weeks.' Prior, however, to biting plaintiff, Eric had bitten two people. Mr. DuNah was aware of both of these incidents.

Plaintiff had been an employee of Elite since May or June, 1951. She had been in the habit of petting Eric every day--whether he was tied or free. He was very friendly and would come up to her when he was not tied. She frequently petted him in the presence of Mr. DuNah. Neither he nor any one else ever admonished her not to pet the dog according to her testimony. There was, however, evidence to the contrary on this point.

Plaintiff checked into work at 7:30 a.m. on October 26, 1951. Although Eric was tied to his bed by a rope he was standing 'right in the doorway' when she entered. Plaintiff 'walked right through the door where the dog was standing' and 'reached down to pet him' with her right hand (she had her purse in her left hand) when the dog jumped at her, went 'Woof' and bit her in the face and on the right hand causing substantial injuries.

The court found that defendant DuNah was 'the owner and keeper' of the dog, Eric.

Defendant DuNah makes three arguments in support of his plea for a reversal: (1) that the judgment against him is not supported by the issues or findings; (2) that the evidence is insufficient to support a finding that he was the owner and keeper of the dog; and (3) that plaintiff was guilty of contributory negligence as a matter of law. None of these contentions is sound.

In support of his first argument, defendant points out that when an allegation is admitted no issue is raised as to such fact and that a finding contrary to the admission is outside the issues and must be disregarded, hence, in the absence of any issue as to his owning or keeping Eric, there could be no finding which would support a judgment against him. In applying these principles to achieve this result defendant engages in a bit of synthetic reasoning: viz., that by his 'admission' that the dog was owned and kept by Elite he thereby eliminated any such issue as to his owning and keeping the dog, hence the finding that he owned and kept Eric was outside the issues and must be disregarded; consequently the findings do not support the judgment. Defendant may not thus so easily eliminate himself from the vital issues of this case. The rule that no issue is raised where an allegation is admitted is wholly inapplicable in the situation here. A defendant cannot escape the legal consequences of his own acts and conduct by 'admitting' that some one else did them and is responsible therefor. That is the application of the rule for which defendant contends. The facllacy of this position is apparent.

Actually, however, defenda...