McClain v. Lewiston Interstate Fair & Racing Ass'n, Ltd.

• Decision Date: 23 October 1909
• Citation: 17 Idaho 63,104 P. 1015
• Parties: BENJAMIN F. McCLAIN, Jr., by BENJAMIN F. McCLAIN, His Father, Guardian ad Litem, Respondent, v. LEWISTON INTERSTATE FAIR AND RACING ASSOCIATION, LIMITED, a Corporation, and NORMAN VOLLMER, Appellants
• Court: Idaho Supreme Court

104 P. 1015

17 Idaho 63

BENJAMIN F. McCLAIN, Jr., by BENJAMIN F. McCLAIN, His Father, Guardian ad Litem, Respondent, v. LEWISTON INTERSTATE FAIR AND RACING ASSOCIATION, LIMITED, a Corporation, and NORMAN VOLLMER, Appellants

Supreme Court of Idaho

October 23, 1909

APPEAL-NOTICE-ADVERSE PARTY-ACTION FOR TORT-ALLEGATIONS OF COMPLAINT-DEFENSES-JOINDER OF DEFENDANTS-INJURIES BY DOMESTIC ANIMALS-TRESPASS-RECOVERY OF DAMAGES FOR INJURY WHEN VIOLATING LAW-ELEMENTS OF DAMAGES FOR PERSONAL INJURY-RIGHT OF MINOR TO RECOVER DAMAGES.

1. In an action to recover damages for tort brought against several defendants, where at the close of the evidence for plaintiff a motion for a nonsuit is sustained as to one of the defendants, and the cause thereafter proceeds against the other defendants and a verdict is rendered against such defendants; and the judgment of the court is written upon two separate pieces of paper in favor of the defendant upon the motion for a nonsuit and in favor of the plaintiff against the defendants, against whom the verdict is rendered; and such papers are filed in court at different dates and entered in the judgment dockets at different dates; and the defendants, against whom the judgment is rendered, appeal from the judgment or that part of the judgment rendered against them, and do not appeal from the judgment rendered on the motion for nonsuit, the defendant in whose favor the judgment of nonsuit is entered is not an adverse party as to that portion of the judgment from which the appeal is taken and could in no way be prejudicially affected by a reversal of such part of the judgment, and need not be served with the notice of appeal.

2. In an action to recover damages for a tort, the complaint should allege the place where the injury occurred, in order to give the defendant an opportunity to set up all defenses which might arise by reason of the law of the place where the injury occurs.

3. Where, however, the complaint fails to allege the place where the injury occurs, in order for the defendant to avail himself of such defect in the complaint, he must rest upon the court's ruling upon the demurrer and refrain from pleading such facts as a defense.

4. If however, after a demurrer to the complaint, because the complaint does not allege the place of injury, is overruled the defendant pleads as a defense facts arising by reason of the law of the place where the accident occurred, then he is in no way prejudiced by the ruling of the court upon the demurrer.

5. In an action for tort, a complaint alleging that the defendants wrongfully, recklessly, carelessly, negligently, wantonly and with utter disregard of the safety of the various riders engaged in a speed contest, permitted a dog to trespass upon run upon, over and about such track, alleges the liability of the defendants as joint tort-feasors, and the complaint is not subject to a demurrer for misjoinder of defendants.

6. In an action for trespass against the rights of the plaintiff where the allegations show that the defendants acted in concert or by unity of action in permitting such wrong, there is no misjoinder of parties defendant.

7. If domestic animals, such as oxen, horses, dogs, etc., injure anyone in person or property while rightfully in the place where such injury is done, the owner is not liable for such injury unless he knew that such animal was accustomed to do such mischief; and in suits to recover damages for such injury, knowledge must be alleged and proved, for unless the owner knew that such animal was vicious or possessed such traits, he is not liable. If, however, he had such knowledge, he is liable.

8. If domestic animals injure any person or property, while wrongfully in the place where the injury is done, the owner is liable, although he had no notice that such animal was accustomed to do such wrong or mischief. In such case the ground of action is that the animal was wrongfully in the place where the injury was done; and it is not necessary to allege or prove any knowledge on the part of the owner that such animal had previously been vicious.

9. Where a dog invades and trespasses upon the legal rights of a person and injures person or property, and such invasion and trespass is the result of the negligence of the owner, the owner of such dog is liable for the damages done.

10. The fact that the plaintiff was riding in a race upon which money had been wagered, even if in violation of law, would not justify the defendants in injuring him, when such injury was not the result of an effort to suppress such wrong or enforce the law; neither would it deny him the right to recover damages sustained by him in a race, caused by the negligent acts of the defendant in interfering with such race.

11. In an action for damages for personal injury, it is competent to ask the plaintiff to tell the jury how he suffered and the extent of the suffering.

12. In an action to recover damages for personal injuries, it is competent to show the earning capacity of the party injured, the nature and extent of his business, and his inability to pursue such business in his accustomed way, as aid and guide to the jury in exercising their judgment in determining the amount of damages to be awarded.

13. A minor cannot recover compensation for impaired capacity to pursue the ordinary vocations of life prior to his majority, unless it be alleged and proven that he has been given his liberty, that his parents do not claim the right to receive such compensation; but evidence may be offered showing his earning capacity to aid and guide the jury in determining the amount of damages to be awarded after he reaches his majority.

14. Leading questions are within the legal discretion of the trial judge, and where such discretion is not abused, this court will not reverse a case because the court allowed leading questions.

15. Persons who are keepers, harborers or custodians of dogs are required to exercise proper judgment as to the place where the dog is taken and the position in which the dog may be placed, and are responsible for the acts of such dog; and when dogs are taken to a place not suitable or proper or placed or suffered to be placed in a position where they become a dangerous agency, and an injury results therefrom, a jury is warranted in concluding that the owner, harborer or person in control of such dog is guilty of negligence.

16. Where a person takes a dog to a racetrack, or is in control of such dog at and near the track, and suffers or permits such dog to go upon the racetrack and interfere with the riders in such race, and an injury results therefrom to a rider, the owner or person in control of such dog is guilty of negligence and is liable for the damages thereby sustained.

17. Instructions given by the court examined and found to correctly state the law as laid down in this opinion, and to cover the questions requested by the defendants, in so far as such requests were the law governing the case.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District, for the County of Nez Perce. Hon. Edgar C. Steele, Judge.

Action to recover damages for personal injuries. Judgment for plaintiff. Defendants appeal. Affirmed.

Judgment affirmed. Costs awarded to respondent.

George W. Tannahill, and Fred E. Butler, for Appellants.

The complaint is ambiguous, uncertain and unintelligible in that it does not state where the accident occurred--whether in the state of Washington or state of Idaho. The defendants were entitled to have the complaint made definite and certain upon this point, for the reason that if the accident alleged occurred in a state where a statute gave one remedy and the state of Idaho gave a remedy entirely inconsistent, the court could not entertain the action, as in personal actions the remedy is governed by the lex fori. (Anderson v. Milwaukee & St. P. R. Co., 37 Wis. 321; Mexican Nat. R. Co. v. Jackson, 89 Tex. 107, 59 Am. St. 28, 33 S.W. 857, 31 L. R. A. 276.)

The complaint does not state facts sufficient to constitute a cause of action, in that there is no allegation that the animal in question was accustomed to do or had done, before the act complained of, similar acts to those alleged in the complaint, or that the defendant Vollmer had knowledge of such act or acts. The scienter is not alleged. (Mason v. Keeling, 12 Mod. 332; Fritsche v. Clemow, 109 Ill.App. 355; Feldman v. Sellig, 110 Ill.App. 130; Ward v. Danzeizen, 111 Ill.App. 163; Harvey v. Buchanan, 121 Ga. 384, 49 S.E. 281; Fettman v. Hecken etc. Co., 91 N.Y.S. 773; Cook v. Levintan, 94 N.Y.S. 396; Staetter v. McArthur, 33 Mo.App. 218; Smith v. Donohue, 49 N.J.L. 548, 60 Am. Rep. 652, 10 A. 150.) "The owner or harborer of a domestic animal is liable for personal injuries inflicted by it only when he has notice of its vicious traits." (7 Current Law, 121; Cooper v. Cashman, 190 Mass. 75, 76 N.E. 461, 3 L. R. A., N. S., 209; Petey Mfg. Co. v. Dryden, 5 Del. 166, 62 A. 1056; St. Louis Nat. Stock Yards v. Morris, 116 Ill.App. 107; Bentz v. Page, 115 La. 560, 39 So. 599.)

There is a misjoinder of parties defendant. Norman Vollmer is improperly joined as defendant with the Lewiston Interstate Fair and Racing Association, in that no concert of action between the defendants is shown, and no acts were pleaded or alleged sufficient to show whereby the defendants may be made liable as joint tort-feasors. (Minnich v. Lancaster Elec. Ry. Co., 203 Pa. 632, 53 A. 501; Wiest v Electric Traction Co., 200 Pa. 148, 49 A. 891; Bard v. Yohn, 26 Pa. 482; Gallagher v. Kemmerer, 144 Pa. 509, 27 Am. St. 673, 22 A. 970; Miller v. Highland Ditch Co., 87 Cal. 430, 22 Am. St. 254, 25 P. 550; Chipman v. Palmer, 77 N.Y. 51, 33 Am. Rep. 566; Navigation Co....