Indianapolis Abattoir Co. v. Bailey

• Decision Date: 29 October 1913
• Docket Number: No. 8,084.,8,084.
• Citation: 102 N.E. 970,54 Ind.App. 370
• Parties: INDIANAPOLIS ABATTOIR CO v. BAILEY.
• Court: Indiana Appellate Court

54 Ind.App. 370

102 N.E. 970

INDIANAPOLIS ABATTOIR CO

v.BAILEY.

No. 8,084.

Appellate Court of Indiana, Division No. 1.

Oct. 29, 1913.

Appeal from Superior Court, Marion County; Clarence E. Weir, Judge.

Action by Ollie E. Bailey against the Indianapolis Abattoir Company. Judgment for plaintiff, and defendant appeals. Reversed.

John B. Elam, James W. Fesler, and Harvey J. Elam, all of Indianapolis, for appellant. George W. Galvin, of Indianapolis, for appellee.

SHEA, J.

This was an action by appellee against appellant to recover damages for personal injuries sustained by him while in appellant's employ, attempting to drive one of its horses, which kicked him, causing the injuries complained of.

To the complaint in one paragraph, appellant filed an answer pleading, first, a general denial, and, second, a release. Appellee replied in two paragraphs first, a general denial, and, second a special paragraph averring that the release did not cover the injury here sued for. Trial by jury; verdict for appellee. Appellant moved for judgment in its favor on the facts found by the jury in answer to interrogatories notwithstanding the verdict, which motion was overruled,and judgment rendered in favor of appellee for $3,750.

The errors assigned and relied on for a reversal are the overruling of appellant's motion for judgment on the facts found in answer to interrogatories notwithstanding the general verdict and the overruling of its motion for a new trial.

The complaint charges in substance that appellant was a corporation, under the laws of Indiana, engaged in the killing of animals for food and the sale of meats in the city of Indianapolis; that appellant employed in its business a large number of men whose duty it was to drive teams owned and used by it in its business; that on April 8, 1907, a certain team was sent out under the care and control of one Charles Peacock, a driver employed by appellant, and appellee was directed to accompany said Peacock as an assistant to deliver appellant's goods; that one of the horses in said team was of a fractious and dangerous disposition, which fact appellant knew, or by the exercise of reasonable care could have known; that appellee knew nothing of the character of said horse and had no knowledge of its being fractious and dangerous; that appellant negligently failed to notify appellee of the dangerous character of said horse; that the wagon to which said team was hitched had a defective and broken tongue which was unsafe and dangerous to be used and handled with said horse, of which appellant well knew, and of which fact appellee had no knowledge; that said Peacock, while in discharge of his duty, stopped at a place to deliver meat and left appellee in charge of said team; that while so in charge of said team, and in attempting to handle the same, as his duties required, the tongue of the wagon so negligently and carelessly left, gave way, and said horse became fractious and unmanageable and kicked appellee in the leg, breaking same; that, in consequence of the injury so received by the kick of said fractious horse, it became necessary to amputate said leg below the knee, all to appellee's damage in the sum of $15,000.

The second paragraph of appellant's answer pleads the following release as a complete defense to the action:

“Settlement in Full of Claim for Personal Injury.

“I, Ollie E. Bailey, hereby admit and acknowledge that there has been paid to me in hand this day by Indianapolis Abattoir Company the sum of two hundred dollars in full settlement, accord and satisfaction of any and all claims or demands of every description which I now have or may hereafter have against the said Indianapolis Abattoir Company on account of an accident causing injury to me on or about April 8th, 1907. In testimony whereof, I have hereunto set my hand and seal his 22d day of August, 1907. Ollie E. Bailey. [Seal.]

“The foregoing agreement was read by Ollie E. Bailey who said that he understood it; that he knew that in signing it he was signing away his right to any further claim for the injuries herein referred to; that he was satisfied with the settlement; and that he signed it of his own free will. Charles Remster. Lida Bailey. Indianapolis, Ind. 521 W. Morris Street, Indianapolis.”

Appellee's second paragraph of reply avers substantially that, at the time appellee signed said release, he was misled and deceived by the attending physician, who was in appellant's employ as its agent, and who was the only physician who had examined him; that said physician repeatedly stated to appellee that he was not seriously hurt; that his leg was healing nicely; that he would soon be well and entirely cured of his injuries, when in fact he was seriously and permanently injured in such a way as to cause the loss of his leg by amputation, necessitated entirely by the injuries sustained by him as set forth in the complaint; that he had no knowledge of the extent of the injuries or that such injuries would necessitate the amputation of his leg at the time of signing such release; that he relied wholly upon the assurances of said physician and the officers and agents of appellant, who assured him that he would have full and complete use of his leg; that, after the execution of the release, his injuries became more serious and resulted in the amputation of his leg; that, had he contemplated the extent of his injuries, he would not have accepted said sum of $200; and that, by the false and misleading statements of appellant's physician and surgeon and the false and misleading statement of its officers and agents, appellee, in his mentally weak condition, was kept in ignorance of his rights in the premises and of his true condition and induced to sign the alleged release in said condition for a grossly inadequate consideration. Said release was made broad enough in its terms to cover all damages sustained by this plaintiff, when in truth and in fact the damages resulting to him in the amputation of his leg were unknown to him, he being kept in ignorance thereof by the misleading statements of appellant's physician and its agent and employés, and such injuries were not contemplated by him at the time of signing said release and were not included in the settlement made with appellant.

The jury found in answer to interrogatories that appellee was injured on April 8, 1907, by a kick from a horse he was undertaking to drive. He was not employed as an extra driver at that time. On the morning of the accident, a short time before the injury was received, appellee observed that the horse was behaving badly and showing signs of being unruly, and immediately before the accident the horse had been behaving in an unruly manner for several minutes. Appellee could not, while attempting to start the team, put himself in a place of comparative safety by moving over behind the horse which was not misbehaving. The stable foreman and one Lawrence did not believe the horse appellee was driving to be an ordinarily gentle one, but it had not, on any prior occasion, shown that it was any more liable to kick than an ordinary horse. The wagon appellee was using had been inspected the Sunday before the accident, and at that time there was nothing wrong with the tongue that would have been revealed by an ordinary inspection. The accident was not caused by any defect in the tongue. Appellee had opportunity to consult with other doctors regarding the extent of his injury before signing the release, had he cared to do so. Dr. Gebauer, appellant's physician, knowingly made a false statement to induce appellee to sign the release by telling him that he had a splendid union; that he would be able to go back to work in a short time, and if he took the settlement he would have money left when he was able to return to work; that the release has been rescinded by appellee. Appellee recognized the horse which kicked him, when it became daylight, but could not, on account of the covered wagons, have done so before starting with the load by giving ordinary attention to his work. He did not know the horses in question might be hitched to his wagon before starting on the trip, because it was out of his line of business. The team was in charge of one Peacock, and it was customary for a driver to make his trips alone in the majority of instances; appellee being an extra man on the wagon.

In support of the first assignment of error, it is urged that the answers to interrogatories disclose the fact that neither appellant nor its agents or servants had knowledge that the animal was either generally a vicious one or was in the habit of kicking. The interrogatories and answers thereto upon this question are as follows: “(7) Q. Had the horse on any occasion prior to this one shown that it was any more liable to kick than the ordinary horse? A. No. (8) Q. If so, upon what occasion had such disposition to kick been shown? A. None. (9) Q. Did any employé or employés of defendant know of this? A. No. (10) Q. If so, who were they? A. Nobody.” Interrogatory No. 11 reads as follows: “(11) Q. Did the stable foreman and Mr. Lawrence believe the horse which plaintiff was driving to be an ordinarily gentle horse? A. No.” Appellee urges that interrogatory No. 11 is in conflict with interrogatories Nos. 7 et seq., above set out, and that it therefore nullifies whatever force they may have.

[1] It is the settled law that the master must have knowledge, either actual or constructive, of the vicious character of an animal mansuetæ naturæ, such as a horse, before he may be charged with the duty of responding in damages for any injuries that may be inflicted by such animal. Klenberg v. Russell, 125 Ind. 531, 25 N. E. 596; section 4041, Thompson on Negligence; Geo. H. Hammond Co. v. Johnson, 38 Neb. 244, 56 N. W. 967;Ward v. Danzeizen, 111 Ill. App. 164;Finney v. Curtis, 78 Cal. 498, 21 Pac. 120;Reed v. Southern Express Co., 95 Ga. 108, 22 S. E. 133, 51 Am....