Burns v. Smith

• Decision Date: 27 May 1902
• Citation: 29 Ind.App. 181,64 N.E. 94
• Parties: BURNS v. SMITH.
• Court: Indiana Appellate Court

29 Ind.App. 181

64 N.E. 94

BURNS

v.SMITH.

Appellate Court of Indiana, Division No. 2.

May 27, 1902.

Appeal from circuit court, Morgan county; George W. Grubbs, Judge.

Action by Sherman Burns against Edith Smith. From a judgment for defendant, plaintiff appeals. Affirmed.

A. D. Rose and Oscar Matthews, for appellant. Renner & McNutt, for appellee.

WILEY, C. J.

Appellant was plaintiff below and prosecuted this action to recover damages alleged to have resulted from the negligence of appellee. The facts upon which he based his action are stated in the complaint as follows: That appellee owned a tract of land in Morgan county, upon which there was growing timber; that she desired to have such timber cut into saw logs, and hauled to a mill; that appellant was employed by appellee to assist in cutting such logs and loading them on wagons; that while engaged in such service appellee's foreman and agent, one Edward Smith, who was in charge of said work, and who was acting for and in the place of appellee, ordered and directed appellant to assist in loading a log upon a wagon; that there were then five logs on said wagon, and that said Smith wanted to put another log on the top of said five logs; that, pursuant to said direction, appellant, said Smith, and three other men in appellee's employment, took hold of the log, and rolled it upon skids, by hand, to near the top of the other logs on the wagon, when the said foreman, seeing that the log could not be loaded in that way, the log getting out of reach before getting in place, and that while said log was on the skids above the heads of the men, negligently and carelessly gave the command, “Let her go to -, boys; we can't hold it;” that appellant was near the center of the log between the skids, with no means of escape except to let go and run from the wagon; that the log was so heavy that he could not hold it, and was compelled to let go and run; that in attempting to get out of the way he was run down and over by the log and injured. The appellee answered by general denial. The cause was tried by a jury, and upon the close of appellant's evidence the court, upon appellee's motion, directed a verdict for her. Appellant moved for a new trial upon the ground that the verdict was not sustained by sufficient evidence, and was contrary to law; that the court erred in excluding and in striking out certain evidence and in directing a verdict against appellant. The appellant has assigned as error the overruling of his motion for a new trial.

If appellee can be held liable under the facts charged in the complaint, it must be upon the theory disclosed by the pleading, and that is, that appellant was employed by appellee to assist other men in cutting timber and loading logs, and that it was actionable negligence, for which appellee is liable, for Smith, as agent and foreman of appellee, to say, while appellant and others were loading the log, “Let her go to -, boys; we can't hold it.” The evidence discloses that at the time appellant was employed and when he was injured appellee was a married woman, and only 17 years old. Edward Smith, who was her husband, and alleged agent, was 24 years old. The evidence wholly fails to show that Edward Smith had any authority to act for appellee so far as controlling, employing, or directing the men engaged in cutting and loading the timber. The evidence shows that two men by the name of Johnson and Vest had the contract to cut the timber, and appellant was helping them at the request of appellee's husband. Appellee's husband had a team, and was hauling logs with it. Other persons with teams were also hauling. We gather from what is said in the briefs and what appears from the record that the court directed a verdict for appellee upon the ground that she, being an infant, could not appoint an agent, and thus render herself liable for his negligent or tortious acts. If appellee had not the power to appoint an agent, then she would not be liable for his acts. It has been frequently held that an infant cannot appoint an agent, and that such act is absolutelyvoid. Trueblood v. Trueblood, 8 Ind. 195, 65 Am. Dec. 756;Tapley v. McGee, 6 Ind. 56;Fetrow v. Wiseman, 40 Ind. 148 (155); 1 Am. & Eng. Enc. Law (2d Ed.) 940. The rule holding that an infant cannot appoint an agent, and that such an appointment is absolutely void, rests upon the proposition...