Broadstreet v. Hall
| Decision Date | 22 February 1907 |
| Docket Number | 20,840 |
| Citation | 80 N.E. 145,168 Ind. 192 |
| Parties | Broadstreet v. Hall |
| Court | Indiana Supreme Court |
From Montgomery Circuit Court; Jere West, Judge.
Action by Mary M. Hall against Alexander Broadstreet. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p 590.
Affirmed.
Moore Brothers, C. C. Matson and Crane & McCabe, for appellant.
S. A Hays, C. E. Akers and N. A. Whitaker, for appellee.
Action by appellee to recover damages for personal injuries sustained. The cause was originally instituted and tried in the Putnam Circuit Court, wherein appellee recovered a judgment, which, on appeal to the Appellate Court, was reversed by reason of certain erroneous rulings of the trial court. Broadstreet v. Hall (1904), 32 Ind.App. 122, 69 N.E. 415. The venue of the action was subsequently changed to the Montgomery Circuit Court. The complaint upon which the cause was tried in the latter court consists of two paragraphs, the first and third. The former, having been amended, is denominated the amended first paragraph of the complaint. The answer was the general denial. There was a trial by a jury. No evidence however, was introduced by appellant. A verdict was returned in favor of appellee, assessing her damages at $ 1,500, and over appellant's motions for a venire de novo and a new trial judgment was rendered on the verdict. The denial of these motions and the overruling of the demurrer to the third paragraph of the complaint are the errors assigned and relied upon for reversal.
The amended first paragraph of the complaint abounds in repetitions and unnecessary averments. The following, however, may be said to be an epitome of the facts therein alleged. On April 15, 1899, Clyde Broadstreet, a minor of tender years, son of defendant, was living with his said father as a member of his family at the town of Cloverdale, Putnam county, Indiana. On that day the defendant employed his said son to convey a certain message from said town to Harrison Broadstreet, who resided two miles distant therefrom. For the purpose of carrying this message the defendant furnished and supplied his son with a horse, owned by him (the defendant), and this horse was ridden by the boy on that occasion. The horse in question was difficult to control, and, it is alleged, defendant's son was careless and negligent in managing and controlling the horse which defendant furnished him upon the occasion of carrying said message--all of which the defendant then and there well knew. Defendant's son, at the instance and command of his father, rode the horse in question for the purpose of carrying the message as commanded by his father to the person to whom it was directed. While in the performance of this service, and within the scope of his employment and agency, he rode the horse along a public highway upon which the plaintiff was lawfully traveling in a buggy. The paragraph further alleges that on said occasion the son, in the performance of the aforesaid service for his father, negligently, carelessly, and recklessly rode and ran said horse along said highway over and against the buggy in which plaintiff was traveling, and thereby struck her and threw her out of the buggy upon the ground, by reason of which she was bruised, wounded, and permanently injured and damaged.
The facts alleged in the third paragraph may be summarized as follows: On April 15, 1899, defendant negligently ordered, commanded, and permitted his son, Clyde Broadstreet, of the age of nine years, who was residing with his father as a member of the family, to ride a horse owned by the defendant to carry a message for the defendant from the town of Cloverdale, Putnam county, Indiana, to Harrison Broadstreet, who resided about two miles distant from said town. Said Clyde Broadstreet was inexperienced in the management and control of horses, did not have the strength and skill to manage and control horses, and was reckless and careless in the management and control of horses--all of which was at the time known to the defendant. In pursuance of the order and command of the defendant, he started upon his said mission of conveying the message in question, and, while riding said horse furnished by his father along the public highway in a careless and reckless manner, he met the plaintiff, who was lawfully traveling in a buggy upon said highway. It is alleged that, by reason of said Clyde's inability, and want of strength and skill, to manage and control said horse on which he was riding, he ran the horse into and against the buggy in which plaintiff was then and there traveling on said highway, and thereby threw her out of said vehicle to the ground, by reason of which she was bruised and wounded to such an extent as to be permanently injured and damaged.
The evident theory of the first paragraph, as outlined by the facts, is that the relation of master and servant existed between appellant and his minor son at the time of the accident in question, and that therefore, under a well-settled rule, appellant is responsible for the negligence of his said servant, to which the injury of appellee is imputed. This negligence, as shown, was committed by appellant's son and servant within the scope of the employment or service which he was performing at the time for his father.
The third paragraph proceeds upon the theory that the injuries received by appellee are due to the negligence of appellant, under the circumstances, in placing his minor son in the control and management of his horse upon the occasion and for the purpose in question, and allowing him to ride the horse along the public highway in the performance of the business or mission upon which he sent him. That, by reason of the boy's carelessness, youth, inexperience in the management of horses, and his want of strength and ability to govern the horse at the time in question, he ran into appellee's buggy and threw her to the ground, thereby injuring her, as alleged in the pleading.
The objection urged by appellant's counsel in respect to the insufficiency of the third paragraph of the complaint is that it was the wilful act of the horse which is averred to have injured appellee, and that, inasmuch as the act is such as horses do not usually commit, the paragraph is bad, for the reason that there are no facts to show that the horse which appellee's son was riding at the time had any disposition or propensity to commit such act, and that the defendant had notice of such disposition. Counsel, however, certainly misapprehend the facts as they are averred in the third paragraph, for the injuries alleged to have been sustained by appellee are not attributed to the wilful act of the horse, but it is alleged that appellant, by reason of the youth of his son, his careless and reckless habits, and his want of strength and skill to manage and control the horse in question, which horse, as averred, was difficult to manage and control--all of which facts were well known to appellant at the time--was, under the circumstances, guilty of negligence in placing his son in charge of the horse, and sending him out upon the public highway to convey the message to Harrison Broadstreet, as he was directed and commanded to do.
It appears that by reason of his inability to manage and control the horse, and by reason of the careless and reckless manner in which he rode the horse along the public highway upon which appellee was traveling, he collided with the buggy and thereby caused the injury of which appellee complains. That appellant must be regarded as guilty of negligence in placing his son in control of the horse and sending him out upon the public highway is manifest. In Dunlap v. Wagner (1882), 85 Ind. 529, 44 Am. Rep. 42, this court said: "We assume that horses require the management of an intelligent person, in reasonable control of his mental and physical powers, and this we do for the reason that all persons are presumed to know the natural and ordinary propensities and dispositions of such animals." It is apparent that the injury which appellee received was the natural and proximate result of appellant's alleged negligence. It is a maxim of the law that a person must be held to contemplate the probable consequences of his own act. It is true, however, that in cases of this kind the injury received by the complaining party must be such as the wrongdoer might reasonably have anticipated or foreseen, but it is not essential that it should be made to appear that the precise injury or accident which did occur could have been anticipated or foreseen. It will be sufficient if the injury resulting from the wrongful act is such as was usual and therefore might have been expected. Dunlap v. Wagner, supra, and authorities cited.
Appellant, by engaging his son to carry the message for him on the occasion in question, under the facts and the law applicable thereto, must be held, to that extent at least, to have created the relation of master and servant between him and his son, and is, under the third paragraph of the complaint, responsible in damages for injuries resulting from the inability of the son properly to control or manage the horse, or, under the first paragraph of the complaint, on account of the son's negligence in riding the horse along the public highway while engaged in the performance of the business of his father. In support of these propositions, see the following: Teagarden v. McLaughlin (1882), 86 Ind. 476, 44 Am. Rep. 332; Dunlap v. Wagner, supra; 1 Cooley, Torts (3d ed.), *122; Tiffany, Per. and Dom. Rel., § 120; Schouler, Dom. Rel. (5th ed.), § 263; Lashbrook v. Patten (1864), 62 Ky. 316; Wood, Master and Serv. (2d ed.), §§ 277, 282; 1 Thompson,...
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