Butner v. Lord

• Court: Georgia Court of Appeals
• Writing for the Court: GARDNER
• Citation: Butner v. Lord, 95 Ga.App. 782, 98 S.E.2d 646 (Ga. App. 1957)
• Decision Date: 20 May 1957
• Docket Number: No. 2,No. 36704,36704,2
• Parties: F. N. BUTNER v. Frank LORD, as Next Friend, etc

Page 646

98 S.E.2d 646

95 Ga.App. 782

F. N. BUTNER v. Frank LORD, as Next Friend, etc.

No. 36704.

Court of Appeals of Georgia, Division No. 2.

May 20, 1957.

Syllabus by the Court.

Under the situation as here depicted, counsel for the defendant cannot complain that he was deprived of a right to have another jury after the court had specifically instructed that the jury were being impaneled for the purpose of trying the issue as to the defendant, all parties concerned, including the defendant, being named by the court.

Frank Lord (hereinafter called the plaintiff), as next friend of Sue Lord, brought suit against F. N. Butner and Effie P. Butner as joint owners of a riding stable known as the Pine Hill Stables. Effie P. Butner filed a plea of no partnership and, after all parties struck a jury, the court heard the evidence and directed that Effie P. Butner was not a partner, and the case proceeded to trial with F. N. Butner alone as defendant, and resulted in a verdict for the plaintiff.

The pleadings are substantially as follows: Paragraph 1 of the petition reads: 'That the defendants herein are Effie P. Butner and F. N. Butner, who own and operate the Pine Hill Stables and rent horses to the public, as a barn and stable and track at 90 West Wieuca Road, N.E., adjacent to the Chastain Memorial Park, sometimes known as North Fulton Park, and as such is subject to the jurisdiction of this court.'

The defendant answered paragraph 1 as follows: 'This defendant, F. N. Butner, admits that he owns and operates Pine Hill Stables and rents horses to the public, and is subject to the jurisdiction of this court, but this defendant denies that Effie P. Butner has any right, title or interest in and to Pine Hill Stables or any horses in said stable.'

Paragraph 2 of the petition reads: 'That the defendants and each of them have injured and damaged your petitioner in the sum of $50,000 as will hereinafter be more fully alleged.' In the answer of the defendant denied this paragraph of the petition.

Paragraph 3 of the petition reads: 'Your petitioner alleges that his daughter, Sue Lord, age 17, around noon on the 14th day of July, 1953, in the company of others, went to the chastain Memorial Park in Fulton County for the purpose of going horseback riding on said date at said time and place.' In the answer the defendant stated that for want of sufficient information the defendant neither admitted nor denied the allegations of this paragraph.

Paragraph 4 of the petition reads: 'That his said daughter engaged a horse from the said Pine Hill Stables which was being operated by the defendants and each of them at said time and place, and that she paid an attendant, one Arthur Brambley, $2 for her horse, the customary price for an hour's riding, and specified that she wanted a gentle horse.' The defendant's answer stated that for want of sufficient information this paragraph could not be admitted nor denied.

Paragraph 5 of the petition reads: 'Your petitioner alleges that the said Arthur Brambley brought her a reddish-brown horse known as the mare 'Princess', already saddled, and assisted your petitioner's daughter in mounting the horse; your petitioner's daughter asked the attendant if the horse was one that would stop when she said 'whoa' and she was assured that said horse was a gentle horse.' The answer to this paragraph reads: 'This defendant denies paragraph 5 of plaintiff's petition as alleged, and further answering said paragraph this defendant shows that the plaintiff stated that she wanted a horse with some spirit as she was a better rider than the boy, whose name is unknown to the defendant, who accompanied the plaintiff to the defendant's stables.'

Paragraph 6 of the petition reads: 'Your petitioner alleges that his said daughter, in the company of others, left the stable on horseback and went up a trail in a westerly direction adjacent to the stables, leading to Lake Forest Road, and that immediately after beginning an incline from the stables on a bridle path that the said mare 'Princess' suddenly bolted and started running away with petitioner's said daughter, she trying to stop said horse by pulling on the reins and yelling 'whoa', which had no effect on the horse, and that the saddle girth was loose and the saddle started to slip and sway from side to side as the horse started running.' This paragraph is denied in the answer of the defendant.

[95 Ga.App. 784] Paragraph 7 of the petition reads: 'Your petitioner alleges that his daughter made an outcry for help and she was shaken into the air and off the horse except her left leg became hung in the stirrup, and she was dangling from one side of the horse to the under under his belly, and she was helpless when said horse began to run and picked up momentum down Lake Forest Road in a southerly direction, and at said time and place the City of Atlanta had under construction water mains along said Lake Forest Road and had a City of Atlanta construction truck parked along Lake Forest Road, and the said mare ran close to said parked truck and the petitioner's daughter's body and left side of her leg and arms were thrown against said truck, and your petitioner was seriously and permanently and horribly injured for life as the result of being thrown against said truck, and knocked unconscious at said time and place, all of which will be more fully alleged herein.' In the answer the defendant stated that for want of sufficient information this paragraph was neither admitted nor denied.

Paragraph 8 of the petition reads: 'Your petitioner alleges that the said F. N. Butner was at lunch and away from the stables at the time the stable boy, Arthur Brambley, let his said daughter have the horse, and alleges that at all times mentioned herein, he was acting as agent and servant of the said Effie Butner, and that had he been on the premises, another horse would have been selected who would have been gentle for his said daughter to ride, and alleges that the said F. N. Butner together with the said Effie Butner, defendants, knew that the horse for which they were charging and accepted money from the plaintiff's daughter to ride upon was a wild, dangerous and vicious horse which would likely run rapidly and wrecklessly and violently and suddenly turn and throw your petitioner's daughter off and horribly maim her.' The answer to this paragraph reads: 'This defendant denies paragraph 8 as alleged, and for further answer says that he was at lunch and away from the stables at the time plaintiff rented a horse, and that Arthur Brambley is this defendant's sole employee, and that Arthur Brambley was not and is not the agent of Effie Butner and that Effie Butner has no right, title or interest in the Pine Hill Stables, and is not engaged in the business of renting horses as the Pine Hill Stables is the sole property of this defendant and is managed by him. And further answering said paragraph this defendant shows that the horse rented to plaintiff's daughter was not vicious, wild or dangerous but on the other hand was a mild, tame and gentle horse.'

Paragraph 9 of the petition, which was denied in the answer, reads: 'Your petitioner alleges that the defendants herein knew the horse was not gentle and safe as was requested by his said daughter and for which she paid the defendants' agent and servant, Arthur Brambley, who at all times mentioned herein was the agent and servant of the defendants and each of them, but was wild, vicious and uncontrollable and dangerous to ride upon, and that it would probably throw the petitioner's daughter and maim her as happened and will be hereinafter more fully alleged.'

Paragraph 10 of the petition, which was denied in the answer of the defendant, reads: 'Your petitioner alleges that the defendants, acting through their agent and servant, Arthur Brambley, and that each of them failed to fasten the saddle on said horse properly through allowing the saddle to sway from side to side to cause the horse in running away to accentuate his speed and to catch the petitioner's daughter's foot and leg in the stirrup in such a way that she could not extricate herself.'

Paragraph 11 of the petition, which was denied in the answer of the defendant reads: 'Your petitioner alleges that the defendants and each of them or the defendant's agent failed to give the petitioner's daughter any warning whatsover that the said horse was wild, wreckless, vicious, likely to run away, and to turn suddenly from the path into the road and throw your petitioner's daughter out of the saddle and off of said horse as it did on this occasion.'

Paragraph 12 of the petition reads: 'Your petitioner alleges that the said horse was given to the defendants and each of them by its owner, and that they knew said horse was not one which should be rented to the general public, and particularly to a minor child with practically no horseback training.' The answer of the defendant reads: 'This defendant denies paragraph 12, and further answering said paragraph this defendant shows that said horse was tame, mild and gentle, and that the plaintiff's minor child stated that she was a good rider and a better rider than the boy who accompanied her to the stables and went riding with her.'

Paragraph 13 of the petition, which was denied by the answer of the defendant, reads: 'Your petitioner alleges that as a direct result of the negligent acts as herein stated, that she was thrown out of the saddle of said run-away, wild and uncontrollable horse except that her left leg was caught in the stirrup and that she was thrown violently and with great force against a parked truck and that she suffered the following permanent injuries: (a) Your petitioner alleges that his said daughter suffered a fracture of the sacrum and a separation of symphysis publis, severe lacerations over her entire body, and a transverse fracture of the shaft of the left femur. (b) Your petitioner alleges that she...