Davis v. Houghtelin

• Decision Date: 18 December 1891
• Citation: 33 Neb. 582,50 N.W. 765
• Parties: DAVIS v. HOUGHTELIN ET AL.
• Court: Nebraska Supreme Court

33 Neb. 582

50 N.W. 765

DAVIS

v.HOUGHTELIN ET AL.

Supreme Court of Nebraska.

Dec. 18, 1891.

Syllabus by the Court.

A master is liable to third persons for damages resulting from the negligence of his servants, only when the latter is acting within the scope of his employment.

Error to district court, Jefferson county; MORRIS, Judge.

Action by W. E. Davis, administratrix of Daniel C. Davis, deceased, against Alanson E. Houghtelin and J. B. McDowell, for wrongfully causing the death of deceased. Defendants demur to the petition, which demurrer was sustained, and judgment entered for defendants. Plaintiff brings error. Affirmed.John Saxon, for plaintiff in error.

W. O. Hambel and Marquett, Deweese & Hall, for defendants in error.

NORVAL, J.

This is a proceeding in error to reverse the judgment of the district court of Jefferson county, sustaining a general demurrer to the petition of the plaintiff, and dismissing the action. The petition alleges: “(1) That she is administratrix of the estate of Daniel C. Davis, deceased, duly appointed according to law. (2) That the defendants are partners in trade, doing business as such at Fairbury, in said county, under the firm name and style of Houghtelin & McDowell. (3) That on or about the 28th day of March, A. D. 1888, said defendants were in the possession of certain premises at Fairbury, in said county, whereon they were engaged in the business of feeding cattle and hogs, and had, upon said premises, a quantity of feed and provender for said cattle and hogs; and plaintiff says defendants also kept and employed, in and about their said business, a certain servant and agent, one Allen Ireland, by name, for the purpose of guarding said feed, and whose business it was, in the due course of his employment by said defendants, to seize and detain persons who might be found disturbing such feed so provided by defendants. (4) That on said day the said Daniel C. Davis, then in full health and life, had occasion to go and be upon said premises of said defendants, and she says that while so there the said defendants, by their servant and agent, Ireland, who was then and there present, and acting for said defendants in the due course of his employment as aforesaid, and pursuant to his instructions and orders, attempted to seize and detain, without any lawful process or warrant, the said Daniel C. Davis, deceased; and plaintiff avers that said defendants and their said servant so negligently, carelessly, and unlawfully managed their said business and attempt that the said Daniel C. Davis was then and there shot through his heart with a bullet from a pistol then and there negligently, carelessly, and unlawfully had and held in the hands of defendants' said servant, said Ireland, and said Daniel C. Davis was then and thereby instantly killed. (5) Plaintiff avers that the death of said Daniel C. Davis, as aforesaid, was caused by the wrongful and unlawfulact, neglect, and default of said defendants, and without any just or sufficient cause, provocation, or fault on the part of the said decedent; that they, said defendants, knowingly and intentionally employed said Ireland for the purpose of assaulting and attempting to detain, without process or warrant, persons who might go upon their said premises as aforesaid; and that they well knew that their said servant, Ireland, was so armed with said pistol in their said employment, and was likely to so negligently, carelessly, and unlawfully use the same in and about their said business and employment, and that great personal injury and damage, or loss of life, was liable to ensue thereby and therefrom, yet they, said defendants, notwithstanding, did not and would not prevent and forbid their said servant, but did carelessly, negligently, and unlawfully permit him in the premises, contrary to their duty in that case. (6) Plaintiff further states that said Daniel C. Davis, deceased, left surviving him his widow, this plaintiff, and the following named children, his next of kin and heirs, to-wit: Albert L. Davis, aged 17 years; Georgie Davis, aged 14 years; May Davis, aged 12 years; Ella Davis, aged 10 years; Stella Davis, aged 8 years; and Emory Davis, aged 2 years,--all residents of the same county; and she says that they have sustained damages by reason of the wrongful act, neglect, and default of defendants, as aforesaid, in the sum of five thousand ($5,000.00) dollars.”

This is an action to recover damages for the killing of plaintiff's intestate by one Allen Ireland, who, it is alleged, was at the time in the defendants' employ. The general principle that a master is liable for injuries to third persons resulting from the negligence of the servant while in the line...