Ellsworth v. Elite Dry Cleaners, Dyers & Laundry, Inc.

FOX, J.

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

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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 Erie, 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 daytime 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.