Serio v. American Brewing Co

• Decision Date: 12 March 1917
• Docket Number: 20972
• Citation: 74 So. 998,141 La. 290
• Court: Louisiana Supreme Court
• Parties: SERIO v. AMERICAN BREWING CO

74 So. 998

141 La. 290

SERIO v. AMERICAN BREWING CO

No. 20972

Supreme Court of Louisiana

March 12, 1917

Rehearing Denied April 16, 1917

SYLLABUS

(Syllabus by the Court.)

It is hardly to be expected that the entire power of a brewing corporation will be invoked, or that even a resolution of its board of directors will be considered necessary to authorize the keeping of a dog in its bottling plant, whether to kill rats, or as a mascot or source of amusement to its employes but those who are vested with the corporate authority are bound to know that a dog so kept, with the knowledge and approval of the agent whom they place in charge of the plant, is a dangerous animal, which threatens injury to innocent people, and the fact that they choose to close their eyes to that condition is not a good defense to an action in damages by a person who, without fault on his part, has been bitten by the dog.

Our law does not authorize the infliction of punitive damages in civil cases.

Malcolm J. Taylor and John J. McCloskey, all of New Orleans, for appellant.

Lemle & Lemle, of New Orleans, for appellee.

Statement of the Case.

SOMMERVILLE, J., concurs. O'NIELL, J., considers the amount of the judgment excessive, but otherwise concurs.

OPINION

MONROE, C. J.

This case comes up on appeal from a judgment rejecting plaintiff's demand for damages for injury and suffering resulting from the bite of a dog alleged to have been the property of defendant, and a vicious brute, to the knowledge of defendant's officers. Defendant admits that plaintiff was bitten by the dog, and at the time and place stated in the petition, but denies ownership of the animal, or liability with respect to it; also denies that it was vicious, or, if vicious, that it (defendant) was aware of that fact. It 'admits that said dog was born and reared, and stayed, on the premises of your respondent, * * * but denies that it was either born or kept on the said premises with the knowledge and consent of your respondent or of any of its agents who had authority to keep the said dog on its premises.'

We find from the evidence that defendant's business is divided into departments, and that a competent man is placed in charge of each department; that the bottling department is situated on Bienville, between Royal and Bourbon streets, and at, and prior to, the occurrence here in question was in charge of Charles Cortie, as foreman, and Charlie Pelletier as assistant foreman; that probably, early in 1911, a female dog strayed into those premises, and with the knowledge and consent of Mr. Cortie was there harbored, and thereafter gave birth to a litter of puppies, one of which was retained by Mr. Cortie, or with his knowledge and consent, and on February 23, 1913, having followed Mr. Pelletier into an adjoining barroom, there inflicted the bite upon plaintiff of which he here complains. There are several witnesses who give their opinions as to the age of the animal at that time -- their estimates ranging from 3 or 4 to 18 months -- but as Mr. Pelletier's relations with it appear to have been rather closer than those of the others, we accept his statement that it was about a year old. It appears to have been a mongrel with a predominating dachshund strain, and the fact that it was small probably accounts for the impression, created in the minds of some of the witnesses, that it was younger than it was said to be by Pelletier, whom, with its mother, it was in the habit of following every morning from the bottling plant into the barroom. Cortie testifies that he made daily reports of matters in the bottling plant, but did not report the dogs; that the officers of the company came there about once in 6 months on inspections, but did not inspect; that the secretary and treasurer had an office there in which he spent 10 or 15 minutes every day, but never went into the bottling works; that the mother of the dog in question was a good little thing, full of play, and a pretty good ratter, and that 'the boys used to give it their scraps of food from their lunches,' a benevolence which was extended to her offspring. Mr. Cortie also gives some testimony, as do other witnesses, to the effect that both animals were in the habit of visiting other places, such as the Cosmopolitan Hotel and Fabacher's restaurant, where food was to be obtained, which was natural enough, in view of the fact that they could, apparently, depend upon the bottling plant for but one meal a day, and found it necessary to breakfast and dine elsewhere, and may also account for their early visits to the barroom. Mr. Cortie further testifies that he never heard that the dog in question had bitten any one before it bit plaintiff, but he does not say, as he said of the mother, that it was 'a good little thing, full of play,' nor was any attempt made by defendant to show that it was gentle or amiable. Mr. Cortie accompanied the dog to a veterinary hospital after it had bitten plaintiff, and testifies that it died two days later, and, although the plain inference is that it died of hydrophobia, or was put to death because found suffering with that disease, plaintiff's testimony as to what Pelletier and the 'fellow' at the hospital told him on that subject, and which inspired him to go at once to the Charity Hospital and take the Pasteur treatment, was excluded on defendant's objection as hearsay. Concerning his position and authority, Mr. Cortie gives the following testimony:

'I was foreman of the mechanical equipment. Q. Was anybody above you on the premises? A. No, sir. Q. You had charge of the premises? A. I had charge of the mechanical equipment, part of it; yes, sir. Q. Was there anybody on the premises who could tell you what to do? A. No, sir. Q. Who did you report to, if anybody? A. I reported daily to the main office.'

Mr. Schlieder, the president of the company, being asked how often he inspected the bottling department, replied: 'Sometimes I don't go there for a long while; two or three months, at intervals' -- to which he adds that he goes in, or looks in, more frequently, 'in passing'; that Mr. Cortie had charge of that department, under his supervision; that Mr. Owen could have given him orders, also Mr. Boulet. Mr. Schlieder differs from the other witnesses called by defendant in that they speak of a multiplicity of dogs that frequented the brewery, while he was unable to remember that he had seen any. Mr. Owen's name is not elsewhere mentioned, and we are not informed whether he ever visited the bottling department, or whether the orders that he could give were those which related to the bottling of the beer, its shipment, or what not. Mr. Boulet was the secretary and treasurer (to whom we have already referred), who never went into the bottling works, though he had an office on the premises, and he testifies that he saw various dogs about the place, and was able to recall the dog here in question and the mother, but that he had paid no attention to any of them; that defendant never owned a dog, and that none were kept at the brewery with his knowledge and consent.

Plaintiff is a barber, whose shop is next door (on Bourdon street) to the barroom, known as the 'Old Absinthe House,' which stands on the corner of Bourbon and Bienville streets, and is next, on the Bienville street side, to defendant's bottling plant. Another barber was also working in the shop and as he and plaintiff did not always arrive at the same moment in the morning it was the custom to leave the key of the shop in the barroom. On the morning of February 23, 1913, plaintiff, being the first to arrive, went into the barroom to get the key,...