FRANCIS
J.
This
case comes up on appeal from the judgment of the district
court on a verdict of the jury in favor of the plaintiff in
an action for damages for personal injuries alleged to have
been sustained by the plaintiff at the hands of M. J
Dinneen, the alleged servant of the defendant, the keeper of
a hotel. The complaint is as follows:
"Plaintiff, complaining of the above-named defendant
alleges:
First. That in all the times hereinafter mentioned the
defendant was the keeper of a common inn in the city of
Huron, Dakota, known as the 'Dakota House.'
Second. That on or about the fifteenth day of January, 1884
this plaintiff was received by the defendant as a traveler
and guest at said inn and hotel.
Third. That the defendant and her servants so negligently,
carelessly, and unlawfully conducted themselves, in regard to
running said hotel, that, while plaintiff so remained in said
hotel or inn, she was set upon by the servants of the
defendant, with defendant's knowledge and consent, and by
them pounded and beaten in the face, and thereby made sick,
sore, and lame, and for a long time thereafter was sick,
sore, and lame, and one eye was bruised and pounded so as to
be permanently injured, as plaintiff is informed and
believes.
Fourth. That on the twelfth day of February, 1884, while the
plaintiff was there and then her guest, the defendant
undertook, for a compensation paid her by the plaintiff, to
keep safely and from harm, and in a proper manner, this
plaintiff while she should remain in the defendant's inn
or hotel; that, while this plaintiff was stopping at the inn
or hotel of the defendant, this plaintiff was, by the
wrongful and spiteful acts of the defendant's servants,
greatly injured by being pitched upon and pounded by the
servants of the defendant, whereby plaintiff's eye was
hurt, and, as plaintiff believes, greatly and permanently
injured.
Fifth. For a fifth and further complaint, plaintiff,
repeating the first count of the complaint, further alleges
that on the twelfth day of February, 1884, and for a long
time before that date, the defendant had in her employ, in
and about said hotel, a servant by the name of M. J. Dinneen,
who was of a rough, brutal, passionate, and ferocious
disposition, to whom the defendant trusted largely the care
and conduct of her hotel or inn; that for a long time before
the twelfth day of February, 1884, the defendant well knew
that the said servant, M. J. Dinneen, was of a rough, brutal,
passionate, and ferocious disposition, and accustomed to
strike, and in the habit of attacking and pounding and
striking mankind, and in the habit of striking and pounding
the guests of said inn or hotel, and had full knowledge that
said M. J. Dinneen had on many occasions attacked and beat
mankind, and the guests of said hotel or inn; that the
defendant, while she kept said servant, M. J. Dinneen, in and
about her employ, and intrusted him with the care of her
hotel and inn, and with the care of her guests, wrongfully
and negligently suffered said rough, brutal, passionate, and
ferocious servant to go at large in and about her hotel or
inn, intrusted by the defendant with the care of said hotel
and of the guests, without being properly guarded or
confined, well knowing his vicious, ferocious, and brutal
propensities to strike and beat mankind, and the guests of
her house, without provocation.
Sixth. That on the twelfth day of February, 1884, the said
brutal, rough, passionate, and ferocious servant, while in
the keeping of the defendant, and while in her employ,
intrusted with the running of said hotel or inn, and with the
care and conduct of the same for the defendant, attacked and
struck and pounded this plaintiff in and about the eye,
whereby the plaintiff became sick, sore, and lame, and so
remained for a long time, and was thereby occasioned great
pain, and her eye was blinded, and greatly, and, as plaintiff
fears, permanently, injured; and plaintiff was prevented from
going on with her business as a seamstress, and was obliged
to, and actually did, expend large amounts of money in
boarding herself, and for medical aid in endeavoring to heal
herself of said wound, to her damage ten thousand dollars.
Seventh. For a seventh and further complaint, the plaintiff,
repeating the first allegation, alleges that upon the twelfth
day of February, 1884, while the plaintiff was a guest at the
defendant's inn, temporarily stopping until she had
completed some business at Huron, Dakota, one M. J. Dinneen
was a servant of the defendant, and, as such servant, was
intrusted with the care of said inn or hotel, and the
defendant's guests therein, by the defendant; that on the
day last mentioned, when said plaintiff was the guest of the
defendant at the said inn, for a compensation duly paid, the
said M. J. Dinneen, servant of the defendant, wrongfully,
willfully, and without cause, while in the course of his
employment, struck, hit, and pounded this plaintiff, striking
her in the eye and face, whereby plaintiff's face became
greatly injured, and whereby this plaintiff became lame and
sick and sore, and so remained for a long time, and was
thereby occasioned great pain and suffering of mind and body,
and the plaintiff's eye was greatly injured, and she was
obliged to and actually did expend large amounts of money in
endeavoring to heal herself of said injury, to her great
damage, ten thousand dollars.
Wherefore, by reason of the premises, the plaintiff demands
judgment of
this defendant for the sum of ten thousand dollars, besides
costs of this action."
And to
this complaint the defendant answers as follows:
"For her answer to the complaint in this action the
defendant alleges the following facts, constituting her
defense:
First. The defendant admits the matters and things set out in
the first subdivision of the complaint.
Second. The defendant denies that on or about the fifteenth
day of January, 1884, or at any other time, this plaintiff
was received in or harbored or remained in this
defendant's inn as a guest or as a traveler, but alleges
the facts to be that on or about the fifteenth day of
January, A. D. 1884, the plaintiff entered the
defendant's said house to dwell as a boarder and a lodger
at an agreed compensation of five dollars per week, and not
otherwise.
Third. The defendant further alleges that the M. J. Dinneen
mentioned in the complaint is her, the defendant's,
husband, and that he and the defendant are living together in
the relation of husband and wife, and not otherwise or in any
other relation.
Fourth. The defendant denies each and every part of said
complaint, and each and every allegation and part of
allegation therein contained, except as hereinbefore
admitted.
Fifth. The defendant further denies that the plaintiff has
expended any money, or has been damaged in the sum of ten
thousand dollars, or in any sum or amounts whatsoever, by
reason of any act, matter, or thing done or suffered to be
done by this defendant, or by her servants, or by reason of
any of the matters charged in the complaint against the
defendant."
On the
trial of the case the jury found a verdict for the plaintiff
against the defendant, in the sum of $1,500, and also made a
special finding that M. J. Dinneen was the servant of the
defendant at the time of the transaction complained of. On
this verdict the court entered judgment for the plaintiff,
and the defendant appealed. The errors assigned are 46 in
number, but fortunately need not be considered in detail. The
plaintiff (respondent) seeks to make the defendant,
(appellant,) as an innkeeper, respond in damages for the tort
of her alleged servant in assaulting and striking the
plaintiff.
And,
first, it is claimed that the said defendant is liable
because of hernegligence in having in her employ "a
rough, brutal, passionate, and ferocious servant,"
"to whom she intrusted largely the care and conduct of
her hotel or inn," well knowing his disposition, and
"negligently suffered said rough, brutal, passionate,
and ferocious servant to go at large in and about her hotel
or inn, intrusted by the defendant with the care of said
hotel, and of the guests, without being properly guarded or
confined, well knowing his vicious, ferocious, and brutal
propensities to strike and beat mankind, and the guests of
her house, without provocation;" the complaint in this
regard being very much like one for keeping and allowing to
run at large a vicious and ferocious dog or other animal. The
complaint charges the said defendant with negligence in
having and keeping in her employ a brutal, passionate, and
ferociousservant, and, on the ground of this negligence, it
is claimed that the defendant is liable for the tort of such
servant. This allegation and charge in the complaint, and
claim of liability, necessarily implies the possession by the
defendant of the right and power to employ the servant
complained of, and also to control and confine him, as well
as the right and power to discharge him; the real insistment
being that she was guilty of negligence in keeping said
servant in her employ knowing his disposition and propensity,
and that, having kept him, and not discharged him, and having
suffered him to run loose about the premises, she is bound to
respond in damages for his assault upon the plaintiff.
But can
the defendant be made liable on this ground, which rests upon
the relation...
