Dolan v. Hubinger

• Decision Date: 19 October 1899
• Parties: DOLAN v. HUBINGER ET AL.
• Court: Iowa Supreme Court

109 Iowa 408

80 N.W. 514

DOLAN

v.HUBINGER ET AL.

Supreme Court of Iowa.

Oct. 19, 1899.

Appeal from superior court of Keokuk; Rice H. Bell, Judge.

Action to recover for personal injuries. A demurrer to the petition was sustained. Plaintiff electing to stand thereon, judgment was rendered against him for costs. He appeals. Reversed.A. L. Wilson, for appellant.

John E. Craig, for appellee.

WATERMAN, J.

The petition alleges, in substance, that the J. C. Hubinger Company is a corporation, and as such is engaged in operating a street railway in the city of Keokuk, and that J. C. Hubinger is the general manager of such corporation. Further proceeding, it is charged that one Case was in the employ of defendant company as a motorman at the time of the acts complained of. We set out the further material allegations in full: “(4) That when said Case entered the employment of the J. C. Hubinger Company he was instructed by them that mischievous boys had for a long time and were still in the habit of causing them great annoyance, rendering their property liable to injury and endangering the personal safety of their patrons, by placing small stones and other obstructions on their tracks, and other like mischiefs, in the vicinity of where C and Reid streets intersect in aforesaid city, on a steep grade; and they instructed him to use special diligence to prevent the carrying out of such mischiefs by boys or others in that neighborhood. (5) That on or about May 15, 1897, about 9 o'clock p. m., as Case was conducting his car into West Keokuk, on nearing the curve where C and Reid streets intersect, he observed some boys running away from the track, and on coming up found some obstructions on the track, left there by them. He stopped the car, and got off to remove the said obstructions, when he observed the boys hiding, about fifteen feet away. Believing them to be waiting there for the purpose of doing further mischievous acts towards defendant's property, as they had been in the habit of doing, he sought to frighten and drive them away, believing it to be his duty to his employer; and in doing so picked up a small stone, and threw it violently at the walk, near the said boys, but not intending to hit them,--all of which acts were following out his instructions, within the scope of his employment, and for the benefit of defendant corporation and J. C. Hubinger. (6) The said small stone struck plaintiff in and over his right eye, inflicting a severe wound, and so injuring the same that plaintiff has totally lost the use of same as a result. That, as a further result, plaintiff's left eye was weakened, and is in danger of being lost. That, as a further result, plaintiff's nervous system was so injured by the said wound that his health is impaired from it, and he is continually suffering from recurring pains about the head, all of which injuries resulted from the said wound, and are permanent. That plaintiff was for a long time confined to his bed as a result of said wound, during all of which time he suffered therefrom great mental and physical pain. (7) That the said Case was arrested for the said negligent, careless, and wrongful act, and the defendant J. C. Hubinger, acting for himself and defendant corporation, with full knowledge of the said wrongful conduct of Case, and the injuries caused plaintiff thereby, bailed said Case out of jail, and sent him to work on the same car, immediately upon learning the facts; directed Case to plead guilty to the charge against him, saying, ‘I will fix it;’ sent physicians, at his own selection and expense, to treat plaintiff's injuries,--all of which acts were done for the purpose and with the intention of approving and ratifying the said wrongful conduct of Case. And said Hubinger did expressly approve and ratify the same for himself and defendant corporation by saying that Case had done ‘right,’ had done his ‘duty,’ and had done no more that he (Hubinger) would have done.” The petition, as originally filed, was against the same parties, and a demurrer to it, the first ground of which was that there was a defect of parties, was sustained. The pleading we have set out is an amended petition. Defendant again demurred as follows: “Now comes defendant, and demurs to the amended petition: (1) Because the amendment does not make out a different case from that of the original petition, in that it simply pleads evidence of the facts set out in the original petition. (2) Because the facts stated in the amendment do not entitle the plaintiff to the relief demanded, as the criminal acts of an...