Clark v. Monroe Cnty. Fair Ass'n

Decision Date15 February 1927
Docket NumberNo. 37367.,37367.
Citation203 Iowa 1107,212 N.W. 163
PartiesCLARK v. MONROE COUNTY FAIR ASS'N.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Monroe County; D. M. Anderson, Judge.

Action for damages for personal injury received on the fair grounds of defendant Association. Judgment against the Fair Association from which defendant appeals. Reversed.Mabry & Mabry, of Albia, for appellant.

Daniel W. Davis, of Oskaloosa, for appellee.

ALBERT, J.

On the 22d day of August, 1922, the defendant, association, was conducting a county fair. Among other attractions was what was designated in the record as a “Green race.” One of the horses in that race owned by the codefendant herein, Giltner, bolted the track, jumped the fence surrounding same, and ran against the person of the plaintiff and seriously injured her. Both Giltner, the owner, and the fair association are made defendants. The jury returned a verdict in favor of Giltner and against the association.

Appellee alleges that the fair association was negligent in not maintaining, at the place where the mare went over, a fence or barrier that was reasonably sufficient to prevent said mare from jumping it. It appears from the evidence that there was, around the outside of said track, a fence consisting of posts set about 8 feet apart, on top of which there was nailed a 2x6, and against the face of the posts was also nailed either a 2x6 or 1x6. After the race started, the horse jumped over this fence and injured the women as above stated.

[1] The first question urged on our attention is that the fair association is a corporation of such a character as it is not liable for negligence. In any event, this defendant is a corporation not for pecuniary profits, organized under sections 1642, 1644, and 1645, Code of 1897, with amendments thereto. This question has never been before this court in its present form. In Williams v. Dean, 134 Iowa, 216, 111 N. W. 931, 11 L. R. A. (N. S.) 410, we had before us in principle the same question here involved, but that was an action against the officers of the corporation and not against the corporation itself. We there held the officers not liable, and specifically refused to pass upon the identical question we have before us in this case as to the liability of the association itself. The Ohio Supreme Court had this question before it in the case of Dunn v. Brown Agricultural Society, 46 Ohio St. 93, 18 N. E. 496, 1 L. R. A. 754, 15 Am. St. Rep. 556. It was there urged, as in the instant case, that the society was that kind of a corporation that the law excuses from liability for the torts of its officers or employees. Under their statute, as under ours, they are a voluntary association, being the free choice of their constituent members, and the corporation was brought about by their active procurement, and they are not compelled to incorporate and the state does not control their conduct. They are absolutely free to have these horse races or not as they may elect, and the whole management and conduct of the fair is committed to the corporation and its officers; it selects its own agents, and conducts its own affairs the same as any corporation. They voluntarily elected as such to have this among their harness races on the track. They invited the patronage of the general public to see the exhibitions at the fair, as well as to be amused by the racing on the track. They charged entrance fees for admission to the fair, and the state, nor any part thereof, ever received any of the proceeds of said fair. Whatever surplus there may have been above the expenses would belong to the association, and, on dissolution, the statute provided that the dividend would be divided among the shareholders.

It is our opinion that this association is not an arm of the state, within the meaning of this term as used in Hern v. Iowa State Agricultural Society, 91 Iowa, 97, 58 N. W. 1092;Morrison v. Fisher, 160 Wis. 621, 152 N. W. 475, L. R. A. 1915E, 469, and similar cases. Courts have gone so far as to hold, as to state fair associations, that while they are considered favored by the law and considered an arm of the state, yet there are circumstances under which they may be held liable for negligence. See Lane v. Minnesota State Agricultural Society, 62 Minn. 175, 64 N. W. 382, 29 L. R. A. 708, and authorities cited. These associations cannot be classed, nor are they ruled by the same rule, as are hospital and charitable corporations. Appellant's contention on this question is not sustained.

In instruction No. 4, the court told the jury the three elements necessary to establish a cause of action in this case. In closing the instruction said:

“If she has failed to establish all of said three propositions by a preponderance of the evidence in the case, then she cannot recover and your verdict will be for the defendant.”

This is an unfortunate wording for an instruction. It might lead the jury to believe that before the verdict could be for defendant,plaintiff must fail to establish all three of these propositions by a preponderance of the evidence, whereas if plaintiff failed to establish any one of these three elements by a preponderance of the evidence, then the verdict should be for the defendant.

[2] The court defined “proximate cause” as the immediate and producing cause, as distinguished from a remote and improbable cause. Passing the question of whether or not this is a correct definition of proximate cause, in a later instruction the court, after having specified the alleged negligence of the association as above set out, limited the consideration of the jury on the question of proximate cause to the matters alleged to be the negligence of the association. It was the claim of the association that the Giltner horse was struck over the head or face with a whip by another rider in the race, and that the Giltner horse thereby became unmanageable and jumped the fence. The jury had the right to consider this evidence on the question of proximate cause, and if they found that the claim of the association with reference to the striking of the horse caused it to bolt and that that was the proximate cause of the injury, then, of course, the defendant, association, would not be liable.

[3][4][5] The court gave such an instruction in favor of the defendant Giltner, but failed to give it in behalf of the association. There is dispute between counsel and much complaint with reference to this matter, because it is said that Giltner asked such an instruction and the association did not. We do not deem this dispute of any materiality, because this identical question was inherent in the very foundation of this action, and when the court attempted to instruct on it, it was one of the necessary things on which he should have instructed, regardless of whether or not he was asked so to do. It was right to submit this question of proximate cause to the jury, because the evidence in relation to the striking of the horse over the head by another rider in the race was a disputed question of fact, and if the jury found the striking of the horse to be the proximate cause, then the verdict should be for the association.

In the eighth instruction, so far as the fair association is concerned, the only question of negligence submitted on its part was the question of whether or not there was negligence in not maintaining at the place where the mare went over a fence or barrier that was reasonably sufficient to prevent said mare from jumping it, this being the only ground of negligence alleged by plaintiff and submitted by the court.

The court, in a later instruction, in substance told the jury that it made no difference whether the boards and posts of the fence were rotten or not. This narrowed the question, therefore, to the lone question of whether or not the fence was as high as it ought to be under the circumstances. We do not think that this is the proper measure of negligence in such cases, as will be hereinafter explained.

In addition to the facts already set out, the record shows that appellee, with her...

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