O'Neill v. Blase

Decision Date27 May 1902
Citation68 S.W. 764,94 Mo. App. 648
PartiesO'NEILL v. BLASE.
CourtMissouri Court of Appeals

1. Where a vicious animal is to be conducted through the streets of a city, it is the duty of the owner to make adequate provision to prevent the animal from doing damage to passers-by. The owner is absolutely liable for any injury by it to any person exercising ordinary care, in a place where the latter has a right to be.

2. The duty of an owner to restrain a vicious animal arises when he acquires knowledge of its vicious nature. It is not essential to such duty that the particular act which produces injury should have occurred before.

3. Notice to the owner's agent in charge of his business is sufficient notice of the vicious disposition of an animal used in that business.

4. Whether an employé is a servant or independent contractor depends on the nature of the work, the terms of the contract, the occupation of the employé, and the attendant circumstances.

5. A laborer engaged for 50 cents to drive an animal to defendant's shop from another part of the city is held to be a servant, not an independent contractor.

6. An instruction which requires the jury to find the necessary facts to their "reasonable satisfaction," as well as by the greater credibility of the testimony, is not erroneous because of such language.

7. An instruction which authorizes compensation for injuries of a "permanent character" caused "upon plaintiff" is not erroneous as being too general. It is correct as far as it goes.

8. An instruction referring to a particular witness does not necessarily amount to "singling out" his evidence. The propriety of such reference depends upon whether it is fair, or not, in view of the condition of the case.

9. It is not improper to refer by an instruction to the testimony of parties to the cause, and to their interest therein.

10. There is no reversible error in an instruction referring to certain facts in evidence, when connected with the other instructions by appropriate language in such way as to give the jury a full view of all the controverted issues.

11. An instruction should not assume a fact in issue when the cause is submitted for a verdict.

12. Parties are bound on appeal by positions taken by them in the trial court, and no one may complain on appeal of an error either invited or adopted by him.

13. Where two causes of action which might be joined in one petition are united in one count, an objection thereto by a motion to elect at the trial is too late.

14. A cause of action for damages on account of knowingly keeping a vicious animal is essentially different from one based upon mere negligence in keeping an animal. They may be joined in one petition, in the circumstances stated in the opinion; but, if merged in one count, objection thereto is waived unless made before answer.

(Syllabus by the Judge.)

Appeal from St. Louis circuit court; William Zachritz, Judge.

Action by Patrick O'Neill against William Blase, Sr., and another. Judgment for plaintiff, and defendant Blase appeals. Affirmed.

Geo. W. Lubke, Jr., and Lambert E. Walther, for appellant. O. J. Mudd, for respondent.

BARCLAY, J.

This action is for personal injuries caused by an attack upon the plaintiff by a cow. Plaintiff's evidence tended to show that the defendant, Mr. Blase, was engaged in business as a butcher on North Broadway, in St. Louis. His two sons, Herman and William, Jr., had the general management of his business. In May, 1900, Herman Blase bought eight cows of Mr. Gerhart, one of the defendants. The cow in question was one of the lot. Gerhart was a dairyman who lived in the north part of the city, some blocks distant from the place of business of defendant Mr. Blase. Herman Blase saw the cows before he purchased them from Mr. Gerhart. They were in a stable on the premises of the latter. Mr. Blase had not seen the cows before, nor did he see them again until they were brought to his father's slaughter house. The defendant Blase took no active part in the business carried on by his sons for him. He had no personal knowledge of the facts out of which this case arose until after the plaintiff was hurt. Some days before that event Herman Blase sent a colored man and a boy by name of Speiser to get three of the cows, giving the colored man a written order to Gerhart for them. The boy Speiser was about 15 years old. Gerhart delivered the cows into the charge of the colored man and the boy. They started with the cows towards Blase's slaughter house. One of the cows was a mulley cow, — the one which caused the damage in this case. She persisted in turning back towards Gerhart's. After several attempts to drive her with the others, the colored man and his assistant left her in a neighboring pasture, and drove the other two to the Blase premises. The afternoon of the same day the colored man and the boy were sent back for the refractory cow mentioned, but they could not or did not get her out of the pasture. That evening Herman Blase went over to Gerhart's to see if the cow had returned there, and to make arrangements to have her delivered at his place of business. He then made an agreement with a man named Simon, who had worked at odd jobs for Gerhart and other dairymen for some five or six years, to deliver the cow to Blase's slaughter house for 50 cents. The particulars of the evidence on this point will more fully appear further on. The next day (or the second day) thereafter Simon borrowed Gerhart's horse and wagon, tied the cow to the rear of the wagon with a rope of his own, and undertook to lead the cow to Blase's premises. The rope was tied around the cow's neck, and a noose around her mouth. The other end of the rope was then fastened to the end of the wagon. Simon had engaged the services of a friend named Scheers to aid in the work he had undertaken. The plaintiff is a man of advanced years, — about 65 years old. He lived at No. 7614 North Broadway, in St. Louis. He had been in business for many years as a landscape gardener, but lately had not been employed actively. His sons took the active work off his hands. The mishap to plaintiff occurred about noon, June 1, 1900. According to his statement, he was sitting on a bench at his front gate, when the two young men came along Broadway with the cow tied as above described. Broadway is a public street of St. Louis at that point. As the cow got opposite plaintiff's gate, she appeared to fall, and to be in distress because of being so tightly tied. The wagon stopped, and the plaintiff called out some words of warning about "the cow being smothered," or words to that effect. One of the men in charge of the cow remarked that the cow was mean, and would "poke" as soon as she got up. Plaintiff turned around, and walked through his gate into the yard, and hurried towards the door of his house, some 20 feet back from the street. Before he reached a place of safety, the cow, which had gotten loose, ran up behind and struck him in the back. She knocked him down and trampled upon him. Bystanders rescued him and got him into the house. In the meanwhile he had been seriously injured by the cow's attack. There was some conflict of evidence touching the exact movements of the plaintiff immediately before he was injured, but there is overwhelming proof that the cow attacked him in his own yard as he was endeavoring to escape into the house, and the jury so found in passing on the issues submitted by the instructions. In a short time the cow was captured, tied to a telegraph pole, and afterwards taken to Blase's place, where she was slaughtered the same day. On the subject of defendant's knowledge of the vicious character of the cow it appeared by testimony submitted by plaintiff that the boy Speiser, who went with the colored man to get the cow from Gerhart's, had been attacked by the cow some days before the accident to plaintiff. According to this boy, the cow undertook to attack him again on the morning following his first trip to Gerhart's. This boy also testified that before the day of plaintiff's injury he had informed young Mr. Blase (one of the managers of the defendant's business) of this performance of the cow, but Mr. Blase paid little attention to the information, and merely laughed. To quote the language of the boy touching notice of the vicious character of the cow, he informed the younger Blase that the cow wanted "to buck him," and had "chased" him. The defendant's evidence tended to contradict that given on behalf of plaintiff in some respects. But it does not seem necessary to comment upon the conflict of evidence, except in those particulars which will be mentioned in the course of the opinion. The place where the accident occurred was within the limits of the city of St. Louis, on a public street, — North Broadway. The case was tried before Judge Zachritz and a jury. There was a finding for plaintiff in the sum of $1,000 as against defendant Blase. The other defendant (Gerhart) was relieved of liability by an instruction which declared that, under the pleadings and evidence, plaintiff could not recover against said defendant. After the usual motions and exceptions, the defendant took this appeal. Any other facts necessary to elucidate the rulings of the court will be mentioned in the progress of the opinion.

1. The first claim of error by appellant is that the court should have sustained defendant's oral motion made at the trial to require plaintiff to elect upon which of the two causes of action stated in the petition he would proceed. Defendant made a similar motion when the evidence was all in, but the court overruled the motion in each instance. The motion to elect is stated to have been made on "the same grounds as heretofore stated to the court in a written motion heretofore filed." The original...

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