Milasevich v. Fox Western Mont. Theatre Corp.

• Decision Date: 15 January 1946
• Docket Number: 8612.
• Parties: MILASEVICH v. FOX WESTERN MONTANA THEATRE CORPORATION.
• Court: Montana Supreme Court

165 P.2d 195

118 Mont. 265

MILASEVICH v. FOX WESTERN MONTANA THEATRE CORPORATION.

No. 8612.

Supreme Court of Montana

January 15, 1946

Appeal from District Court, Second Judicial District, Silver Bow County; George W. Padbury, Jr., Judge.

Action by Louis Milasevich, a minor, by his guardian ad litem Mike Milasevich, against the Fox Western Montana Theatre Corporation to recover for injuries to plaintiff who was bitten by a dog in defendant's theater. From a judgment for plaintiff, defendant appeals.

Reversed and remanded with directions.

Meyer & Meyer, of Butte, for appellant.

H. L Maury and A. G. Shone, both of Butte, for respondent.

CHEADLE Justice.

Action for damages for personal injuries resulting from having been bitten by a dog in the American Theatre, Butte, Montana owned and operated by the defendant corporation. The case was tried before a jury, and resulted in judgment for plaintiff in the amount of $1,000.

Omitting the formal matter, the complaint alleges in substance that on or about September 7, 1942, the plaintiff, then a minor of eleven years, purchased an admission ticket to the theatre and was thereupon permitted to and did enter the theatre building, occupying a seat on the east aisle thereof about eight rows from the front, being the second seat off the aisle; that while plaintiff was so seated and watching a motion picture, the defendant carelessly and negligently allowed and permitted a dog to enter and run loose and unattended in the theatre, which dog bit plaintiff several times and in several places about the foot, ankle and calf of his right leg, thereby causing deep and severe lacerations of the skin and flesh of his leg; that plaintiff employed a physician to treat said wounds; that within a short time after the injuries, infection set in causing the leg to become sore and swollen, causing plaintiff mental and physical suffering for a period of six months.

The complaint further alleges that the dog in question was not the property of the plaintiff, or under his control; that defendant had actual knowledge of the entrance and presence of said dog in the theatre, reasonably in time to have removed it or otherwise to have prevented the injury to plaintiff, and had the complete and exclusive control of and over said dog.

The defendant demurred generally to the complaint, and specially on the grounds that it is ambiguous, unintelligible and uncertain. The demurrer was overruled. Defendant's answer denies all of the material allegations of the complaint with reference to the injuries complained of.

At the conclusion of plaintiff's evidence defendant moved for a non-suit, and upon conclusion of all of the evidence, for a directed verdict in its favor. Both motions were denied.

Specifications of error relied upon by appellant are insufficiency of the evidence to justify the verdict, and that the court erred in the following particulars:

1. In overruling the demurrer.

2. In denying defendant's motion for a non-suit.

3. In denying defendant's motion for a directed verdict.

4. In rendering judgment against defendant.

5. In giving instructions numbered 7 and 8 over defendant's objections.

6. In overruling defendant's motion for a new trial.

That the verdict is contrary to instructions numbered 20, 21, 23 and 28.

Plaintiff testified that on the evening of September 7, 1942, he then being eleven years old, in company with one Bob Pavlovich, he purchased an admission ticket to the American theatre entered the theatre and occupied the second seat in from the east, or right, aisle in about the eighth row from the front. While he was watching a picture, he heard a woman scream in another part of the theatre, and about a minute later was bitten on the right ankle by a little black dog, whose presence he was unaware of before being bitten. He had never seen the dog before and did not know to whom it belonged. He described the injuries as two teeth marks or skin punctures on each side of the ankle, resulting in bleeding and subsequent infection. He left the theatre about fifteen minutes after being bitten, and walked home, assisted by Pavlovich, without reporting the incident to any employee of the theatre. His parents were unable to obtain medical attention that night, but the following morning plaintiff's father took him to a hospital, where Dr. Shields dressed the wounds, and continued such treatment twice weekly for about eight weeks. He missed one-half day of school, and during the first week suffered some pain which somewhat interfered with his sleep. No permanent injury resulted.

The witness Pavlovich corroborated plaintiff's testimony of the circumstances surrounding the incident in the theatre. He testified that he and plaintiff remained in the theatre until the end of the second feature picture, about fifteen minutes after plaintiff was bitten.

Plaintiff's parents testified as to his condition and actions after his return from the theatre, and as to treatment of his wounds. The father testified that on the day following the incident, he advised the manager of the theatre that plaintiff had been bitten, and was told by the manager to take the boy to a doctor.

Dr. Shields testified as to the wounds and treatment administered, consisting of cleansing and dressing the wounds twenty-three or twenty-four times, at a reasonable charge of $50.

By deposition taken in behalf of defendant and read to the jury, Foster Porter testified that he was employed as doorman at the American theatre on September 7, 1942; that at about 8:30 p.m. on that day he saw a dog trying to enter the main door of the theatre and chased him out three times; that, 'while some customers were entering the theatre the dog ran in alongside them. I saw the dog in the lobby and started pursuing it. The dog ran down the left aisle, facing the screen. The usherette attempted to stop the dog. I immediately went down the aisle after the dog and caught it. I took the dog to the lobby and he broke away from me. He then ran down the right aisle. John Schwartz, a theatre employee, immediately took after the dog. A customer leaving the theatre met the dog in the aisle and he and John caught it. The customer and Schwartz then ejected the dog from the theatre. We were after the dog every minute it was in the theatre.' He further stated that after the dog had been ejected usherettes went down each aisle asking veryone on the aisles and on the first row whether they had been bitten, or had seen anyone bitten, by the dog, and received no affirmative answers. On cross- examination he stated that the dog entered the theatre only once.

The testimony of John Schwartz, taken at a former trial of this action, as a witness for the defendant, was read by plaintiff. On the date of the incident complained of he was manager of the Fox theatre in Butte, which was also owned by the defendant corporation. With reference to the biting incident, he testified: 'As I was going in the American theatre there was a black cocker spaniel standing in the doorway and the ushers and ...