Baumeister, &C. v. Markham
| Decision Date | 25 March 1897 |
| Parties | Baumeister, &c. v. Markham. |
| Court | Kentucky Court of Appeals |
APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.
P. B. & UPTON W. MUIR FOR BAUMEISTER & BRO.
ISAAC T. WOODSON FOR MERRIWEATHER.
O'NEAL, PHELPS & PRYOR, HUMPHREY & DAVIE, AND ALFRED SELLIGMAN FOR APPELLEE.
Pauline Markhan brought this action against John Baumeister & Brother, J. J. Merriweather and city of Louisville to recover for personal injury, consisting of a broken leg and bruises on other parts of her body which resulted from a fall at night into a hole in the sidewalk of Seventh street.
The action when called for trial was, on motion of plaintiff, dismissed as to city of Louisville and this is an appeal from a judgment against the remaining defendants for $4,000 in damages.
1st. It is urged as ground for reversal that the lower court disregarding section 363, Civil Code, overruled the motion for continuance made by the other defendants, now appellants, upon dismissal as to city of Louisville. That section does provide the plaintiff in an action ordinary, other than actions on contract, can demand a trial at any term as to part of the defendants, only upon dismissing his action on the first day of such term as to the others. But we still think, as held in Buckley v. Lambert, 4 Met., 330, it was intended to apply merely in cases where some of the defendants have been summoned and others not summoned.
In our opinion the ruling in question was authorized by section 373 as follows: "Though several defendants are summoned, judgment may be rendered against any of them if the plaintiff would have been entitled to judgment against them in an action against them alone." For, as under it, judgment might have been rendered against any defendant to this action, all being summoned, dismissal as to city of Louisville plainly did not involve the right of the others to postponement of the trial.
2d. Two days before that on which the action was set for trial Baumeister & Brother and Merriweather each tendered an amended answer, stating they had recently learned the person suing was a married woman, wife of Randolph Murray, and not named Pauline Markham; but their motion to file was overruled.
Unless the alleged facts are material there was no need of filing the amended answer, about which the court then had discretion, nor error in denying the motion to file. Section 34, as amended in 1892, is as follows: "In actions between husband and wife; in actions concerning her separate property; and in actions concerning her general property; and in actions for the personal suffering of, or injury to her person or character in which he refuses to unite, she may sue or be sued alone." So the only relevant inquiry touching capacity of appellee to sue alone in this action is whether her husband, if she has one, refused to unite. But that question was not raised in either amended answer, nor by motion for rule against her to show cause why the action should not be dismissed which would have been proper practice. And even if it had been done, her right to sue alone would have been shown by the fact Murray, beside deserting her and marrying another woman, has for several years failed to support and protect her, which conduct should be treated as tantamount to his refusal to unite in any action she might bring.
Section 134 provides the court may at any time in furtherance of justice and on such terms as may be proper, cause or permit a pleading or proceeding to be amended by correcting a mistake in the name of a party, but appellee did not offer to amend her petition in that respect, nor did appellants move the lower court to require it done. The question then arises whether a judgment may be affected by being rendered in the assumed instead of real name of a plaintiff.
It is a rule of practice recognized by this court that if the defendant to an action, though sued in the wrong name, was in proper person before the court and litigated with the plaintiff about the subject of controversy, a judgment against him on the merits of the case is as valid and effectual as if he had disclosed, and the action had been rendered in his true name.
There is no reason why the same rule may not as well apply to the case of a plaintiff suing in an assumed name, if the defendant has not been thereby prejudiced. Therefore, if appellee be the identical person who received the injury complained of, as is so, the judgment in her favor should not be held invalid for the only reason she chose to sue in a name adopted for the stage, and by which she is generally known, for appellants have not been thereby misled, nor can she maintain another action for the same cause against them or either of them.
3d. At the conclusion of evidence in chief on behalf of appellee, Merriweather asked for a peremptory instruction to the jury in his favor, which was refused. To authorize such instruction it should appear that, admitting the testimony to be true and every inference fairly deducible from it the plaintiff still failed to support his claim. (Shay v. R. L. & T. B. Co., 1 Bush, 103.) But that rule is qualified by another, that an allegation in the petition, admitted or not sufficiently denied in the answer, need not be proved.
The testimony in chief on behalf of appellee shows that she went to Louisville under a contract to perform as leading actress in a theater, arriving at Seventh street railroad depot on a Sunday about 11 p. m., thence, accompanied by others, she proceeded along that street, which was a direct route to the boarding house where she started to go; and while walking on the sidewalk abreast with her companions and next to the row of houses between Main and Market streets, fell into the hole, and was injured as mentioned. The hole was a part of or an opening to the cellar of a brick house then being torn down, extended in, or, when properly covered, under the sidewalk about four feet; and was made by timber or brick falling or being thrown down upon and breaking the door-shutter or boards used to cover it. But it was at the time plaintiff received the injury neither covered, fenced or in any manner enclosed, and, though the night was a dark one, there was no light by lamp, or otherwise, to enable persons passing along there to see or avoid falling into it.
The testimony introduced by appellee fully established the fact she was injured by negligence or wrongful act of others, without fault on her part. But she did not prove, though it was at a subsequent stage of the trial shown, that Merriweather or his servants actually caused the opening into which she fell. Nor do we think it was indispensable for her to do so in order to maintain the action against him, for, in her petition, she distinctly alleged, not only that he and Baumeister & Bro. wrongfully caused the hole, which was large and dangerous, to be made, but wrongfully and in disregard of their duty, permitted it to remain open, exposed and unlighted. And, although it is not in his answer expressly admitted he caused it to be made, he does substantially confess it was his legal duty to keep it sufficiently covered, barricaded and lighted at night to prevent persons of ordinary diligence falling into it; and pleads, in avoidance of liability for his alleged failure to perform that duty, that he did do so, and, if such was not the condition when appellee received the injury, it was because evil-disposed persons had, without his knowledge or consent, removed the covering, barricades and lights he had caused to be put there.
In our opinion facts sufficient to constitute prima facie a cause of action against him were either proved by her or admitted, in his answer; and, consequently, the peremptory instruction was properly refused.
4th. It appears that Baumeister & Brother were the original contractors for the entire work of tearing down the old and constructing a new building at the place appellee was injured; but made a sub-contract with Merriweather, the terms of which are shown by a written proposition signed by him and accepted by them, in these words: "I propose to do the following brick work, in addition to storehouse on the northwest corner of Seventh and Market for Samuel Brandeis' estate, in accordance with plans and specifications; take down all brick wall, clean the brick to be used again in the new building and move away the rubbish; and will furnish all new brick and lay same to complete house, in accordance with plans and specifications, for the sum of $1,126." And it is now argued for them that, he being an independent contractor, is singly, if at all, and they are not in any event liable in this action.
The recognized general rule is that, in order to render one person answerable for another's neglect or wrongful act, there must exist between them the relation of master and servant involving right of the former to control the conduct of and discharge from his service or employment the latter. And accordingly it was held in Robinson v. Webb, 11 Bush, 474, cited by counsel, "that when the relation of independent contractor exists as to the use of real property, and the party employed is skilled in performance of the duty he undertakes, and the thing directed to be done is not in itself a nuisance, or will not necessarily result in a nuisance, the injury resulting not from the fact the work is done but from the negligent manner of doing it by the contractor or his servants, the owner can not be made to respond in damages."
It seems to be also established that the question as to liability of the original contractor for negligence or wrongful act of an independent sub-contractor should be determined by the same rule. So if it be applied in this case without qualification or exception, Baumeister & Brother would probably be exempt from liability, for as Merriweather had the right to complete that portion...
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