Cooper v. Robert Portner Brewing Co. 1

• Decision Date: 01 March 1901
• Citation: 112 Ga. 894,38 S.E. 91
• Parties: COOPER . v. ROBERT PORTNER BREWING CO. et al. 1
• Court: Georgia Supreme Court

38 S.E. 91

112 Ga. 894

COOPER .

v.ROBERT PORTNER BREWING CO. et al. ¹

Supreme Court of Georgia.

March 1, 1901.

VICIOUS ANIMAL—INJURY TO SERVANT—LIABILITY OP MASTER—PETITION—COUNTS.

1. When a servant is employed in a business requiring the use of an animal, and the master furnishes an animal which is vicious and dangerous, and this fact is well known both to the master and the servant, it is the duty of the master to furnish such harness and appliances as will render reasonably safe the use of such an animal in the business to be carried on; and if, on account of the failure to furnish equipment of this character, the servant is injured by the animal, without fault on his part, the master is liable to the servant for whatever damages he sustains by reason of such injury, if it further appears that the harness and appliances furnished were known, or could, by the exercise of ordinary diligence, have been by the master known, to be unsafe and unsuitable, and the servant was ignorant of this fact and could not have discovered it by the exercise of like diligence.

2. The petition in the present case, when taken as a whole, clearly sets forth causes of action arising ex delicto.

3. While it is permissible to embrace in one petition in different counts as many causes of action as the plaintiff sees proper, provided they are all of a similar nature, still, since the pleading act of 1893, each count must contain a complete cause of action in distinct and orderly paragraphs, numbered consecutively; and it is not permissible to make paragraphs of one count a part of another count by mere reference to the same.

(Syllabus by the Court.)

Error from city court of Richmond county;' W. P. Eve, Judge.

Action by J. J. Cooper against the Robert Portner Brewing Company and another. Judgment for defendants, and plaintiff brings error. Judgment reversed on each bill of exceptions.

W. K. Miller and B. Wright, for plaintiff in error.

Salem Dutcher, for defendants in error.

COBB, J. Cooper sued Sheehan and the brewing company, his petition containing three counts. It was alleged in the first count that he was employed by the defendants to open and close their brewery, for which he was to be paid the sum of $2 per week, and to sell their beer at a commission of 15 cents a case of quarts and 10 cents a case of pints, the beer to be delivered by petitioner to customers in the city of Augusta from a delivery wagon. The delivery wagon, horse, harness, and outfit were to be furnished by defendants, properly equipped, and ready for use. The beer was delivered to petitioner, and he had to account for the same either by making a report of sales or a return of the beer. He had no duty in regard to the use of the wagon, horse, and harness, except to use the same to make deliveries. After he had been in the employ of the defendants for some time, he was notified that he was to change horses, and drive separately to the wagon, one horse In the morning and the other in the afternoon, a pair of horses which had been previously used as a team. As the horses, when driven together, either ran away, or tried to run away, it was proposed by the defendants that they should be separated, and driven single, when the disposition to run away might be corrected. Accordingly, petitioner was ordered to drive these horses separate to the delivery wagon. He objected to this, but was assured by defendants that the horses would not run away if driven separately, and that a strong and sound harness would be furnished him to hold them securely. Petitioner was inexperienced, and knew nothing about horses, and he was notified by defendants that he would have to have a driver, and would be required to pay him himself. Petitioner objected to this, but seeing that he could not retain his position without complying, and acting upon the assurance of defendants as aforesaid, he selected a negroman to drive the delivery wagon, and agreed with him for the amount to be paid for his services. The driver selected began to drive the horses, and continued to do so for nearly a month, petitioner believing and relying upon the assurance of the defendants that the horses were safe ones when carefully driven. On one occasion when the driver was driving one of these horses, after having made some deliveries, and the horse was proceeding at the customary gait, suddenly, without fault on the part of petitioner and the driver, a portion of the harness known as the "hame strap" broke, and came apart, and the weight of the wagon, it having thereon a small lot of beer, drew the hame upon the collar back over and upon the shoulders of the horse. This frightened the animal, and without warning he lurched forward, and commenced to kick, and petitioner, without fault on his part, was struck by the hoof of the horse, which inflicted a violent injury upon him, from which he has been suffering ever since. He charges that all of his injuries and suffering were caused without fault on his part by the negligence of the defendants in requiring him to use the horse with an insecure, inferior, and dilapidated harness; that the hame strap which broke was unfit to be used as such, being old, and worn out, and that this fact was unknown to petitioner; that, if the hame strap had been one suitable and proper to be used, the occurrence which resulted in injury to petitioner would not have taken place. In the second count of the petition the facts alleged are substantially as above set forth, and in addition thereto it is charged that the defendants were under a continuing duty to furnish and keep in repair good, substantial harness, and that this duty was all the more imperative because of the character of the horse furnished by them; and that, notwithstanding this duty, they utterly failed to furnish a good harness with which to drive the horse, and knowingly furnished inferior harness, which they well knew was worn, and out of repair, —all of which was unknown to petitioner. It is further alleged that in the effort to hold the horse when he began to kick and run the reins attached to the harness broke, —that is, came apart at the place where they were stitched together, —showing that the stitching was old, worn out, and rotten. The traces also broke, so that there was no means supplied the driver or petitioner to control the movements and action of the horse. The Inferior and unsafe condition of the harness was unknown to the petitioner, and in using it petitioner relied upon the statement of the defendants that they would furnish a proper harness to use...