Miller v. Blood

• Decision Date: 11 April 1916
• Citation: 217 N.Y. 517,112 N.E. 383
• Parties: MILLER v. BLOOD.
• Court: New York Court of Appeals Court of Appeals

217 N.Y. 517

112 N.E. 383

MILLER

v.BLOOD.

Court of Appeals of New York.

April 11, 1916.

Appeal from Supreme Court, appellate Division, First Department.

Action by David Miller against Samuel S. Blood, as president of the American News Company, a voluntary unincorporated association consisting of more then seven members. From a judgment of the Appellate Division (161 App. Div. 913,145 N. Y. Supp. 714), reversing a judgment in favor of the plaintiff and dismissing the complaint, plaintiff appeals. Reversed, and case remanded to the Appellate Division, for its consideration of the facts.

Edgar T. Brackett, of Saratoga Springs, for appellant.

E. Clyde Sherwood, of New York City, for respondent.

COLLIN, J.

The action is at common law to recover damages for the alleged negligence of the American News Company causing injuries to the plaintiff. The company is a voluntary unincorporated association consisting of more than seven members. The action is brought against its president under a provision of the Code of Civil Procedure (section 1919). The jury rendered a verdict in favor of the plaintiff. The Appellate Division reversed the judgment entered upon the verdict and dismissed the complaint upon the ground, as expressed in their opinion:

‘There is no evidence to sustain the finding of the jury that the defendant was negligent, and for that reason the motion to dismiss the complaint at the close of plaintiff's case and at the close of the evidence should have been granted.’

[1][2] Therein the Appellate Division erred. The jury were at liberty to find as facts under the evidence: The plaintiff, when injured, was driving a team of horses hitched to a loaded truck. The horses and truck were owned and operated by the company, and were driven by the plaintiff in the course of his employment. One of the horses was habitually balky in drawing the truck when loaded, and when he balked would kick viciously and bite his mate, causing it to pull or lurch. The company had knowledge of those facts. It did not ward or instruct the plaintiff of their existence. On the occasion of the injuries of the plaintiff the balky horse conducted himself in the manner described. The plaintiff dodged the kicks by shifting his position upon the driver's seat, and as he was doing so the mate of the balky horse lurched, ‘gave a strong, sudden pull to the left,’ and through the reins pulled the plaintiff, who was a little off his balance, to the street, where the wheel of the truck ran over and injured his hands. The injuries were, within reason, to be apprehended by the company.

The principal question presented to us is: Was the defendant wholly guiltless of negligence, as a matter of law, in thus furnishing the plaintiff for his use in his work a horse and team of the habits and character described. The plaintiff was not injured through the keeping by the company of a vicious horse and its acts directly upon him. The action is not within the class arising from injuries done by domestic animals, which are vicious and which are known by their owners or keepers to be vicious. Muller v. McKesson, 73 N. Y. 195, 29 Am. Rep. 123;Lynch v. McNally, 73 N. Y. 347;Worthen v. Love, 60 Vt. 285, 14 Atl. 461;Earhart v. Youngblood, 27 Pa. 331.

The company, as...