O'Neill v. Blase

• Decision Date: 27 May 1902
• Parties: PATRICK O'NEILL, Respondent, v. WILLIAM BLASE, SR., Appellant
• Court: Missouri Court of Appeals

68 S.W. 764

94 Mo.App. 648

PATRICK O'NEILL, Respondent, v. WILLIAM BLASE, SR., Appellant

Court of Appeals of Missouri, St. Louis

May 27, 1902

Appeal from St. Louis City Circuit Court.--Hon. Wm. Zachritz, Judge.

AFFIRMED.

Judgment affirmed.

Geo. W Lubke, Jr., and Lambert E. Walther for appellant.

(1) An action for damages growing out of the keeping of an animal after knowledge of its viciousness, is distinct from one based upon negligence in the manner of keeping. Cox v Murphy, 82 Ga. 627. (2) When two causes of action are blended in one count, the remedy is by motion to elect. Otis v. Bank, 35 Mo. 128; State ex rel. v Tittmann, 103 Mo. 553; Mooney v. Kennett, 19 Mo. 554; Christal v. Craig, 80 Mo. 371. And such motion may be made at any time before the case is submitted to the jury. Southworth Co. v. Lamb, 82 Mo. 247; McQuillin's Pl. and Pr., sec. 198. (3) One rendering service for another and representing the will of his employer only as to the result of his work and not as to the means by which it is accomplished, is an independent contractor. Fink v. Mo. Furnace Co., 82 Mo. 276; Railroad v. Farrar, 111 Ind. 195; Wood on Master and Servant (2 Ed.), pp. 593, 599, 609; Moore v. Sanborne, 2 Mich. 519; Kellogg v. Payne, 21 Iowa 575; Milligan v. Wedge, 12 Ad. & E. 737. (4) An instruction on the measure of damages should inform the jury of the proper elements of compensation. Hawes v. Stock Yards Co., 103 Mo. 60. (5) The question as to what is remote or proximate damages should not be left to the jury. Stewart v. Clinton, 79 Mo. 603. (6) Notice which will charge the owner with liability for vicious conduct of an animal, must be notice that it was inclined to do the particular mischief that has been done. Bell v. Leslie, 24 Mo.App. 667; Twigg v. Ryland, 62 Md. 386. (7) Instructions must not be contradictory or inconsistent. State v. Herrell, 97 Mo. 105; Wood v. Steamboat Co., 19 Mo. 529; Redpath Bros. v. Lawrence, 42 Mo.App. 112; Straat v. Hayward, 37 Mo.App. 591.

O. J. Mudd for respondent.

(1) There is but one cause of action stated in the petition. Christal v. Craig, 80 Mo. 371; State ex rel. v. Titmann, 103 Mo. 563; Casey v. Aubuchon, 25 Mo.App. 91. (2) But by pleading to the merits and going to trial, defendant waives the right to present and urge the point. Haase v. Distilling Co., 64 Mo.App. 131; Cofer v. Riseling, 153 Mo. 634; Williamson v. Fisher, 50 Mo. 198; Finney v. Randolph, 68 Mo.App. 560; Paddock v. Somers, 102 Mo. 235; Coffman v. Walton, 50 Mo.App. 404. (3) One driving or carrying through the streets of the city an animal known to be vicious and disposed to attack persons, is, if not an insurer, at least bound to use the highest degree of care to protect persons on the street from injury. 2 Am. and Eng. Ency. of Law (2 Ed.), 362; Ficken v. Jones, 28 Cal. 618; Eichel v. Senhum, 2 Ind.App. 208; Hudson v. Roberts, 6 Exch. 695; Lyons v. Merrick, 105 Mass. 71; Linnehan v. Sampson, 126 Mass. 511; 28 Cent. L. J. 135, 136; Reynolds v. Hassey, 5 A. 458; Godean v. Blood, 52 Vt. 251; Stumps v. Kelly, 22 Ill. 140-2; 1 Redfield & Shearman on Neg., sec. 17, p. 18. (4) The gist of the action is carrying the cow through the streets with knowledge of her vicious disposition. 2 Am. and Eng. Ency. of Law (2 Ed.), 353; Bickel v. Bickel, 48 Mo. 396. (5) The instruction on the measure of damages is not reversible error. The damages are not immoderate. Hanniford v. City of Kansas, 103 Mo. 172; Rosenkranz v. Railway, 108 Mo. 9; Bigelow v. Railway, 48 Mo.App. 367; Chilton v. St. Joseph, 143 Mo. 192.

BARCLAY, J. Bland, P. J., and Goode, J., concur.

OPINION

BARCLAY, J.

--This action is for personal injuries caused by an attack upon the plaintiff by a cow.

Plaintiff's evidence tended to show that the defendant, Mr. Blase, was engaged in business as a butcher on North Broadway in St. Louis. His two sons, Herman and William, Jr., had the general management of his business. In May, 1900, Herman Blase bought eight cows of Mr. Gerhart (one of the defendants). The cow in question was one of the lot. Gerhart was a dairyman, who lived in the north part of the city, some blocks distant from the place of business of defendant, Mr. Blase. Herman Blase saw the cows before he purchased them from Mr. Gerhart. They were in a stable on the premises of the latter. Mr. Blase had not seen the cows before, nor did he see them again until they were brought to his father's slaughterhouse. The defendant Blase took no active part in the business carried on by his sons for him. He had no personal knowledge of the facts out of which this case arose, until after the plaintiff was hurt. Some days before that event, Herman Blase sent a colored man, and a boy by the name of Spieser, to get three of the cows, giving the colored man a written order to Gerhart for them. The boy Speiser was about fifteen years old. Gerhart delivered the cows into the charge of the colored man and the boy. They started with the cows towards Blase's slaughterhouse. One of the cows was a muley cow, the one which caused the damage in this case. She persisted in turning back towards Gerhart's. After several attempts to drive her with the others, the colored man and his assistant left her in a neighboring pasture and drove the other two to the Blase premises. The afternoon of the same day, the colored man and the boy were sent back for the refractory cow mentioned; but they could not or did not get her out of the pasture. That evening Herman Blase went over to Gerhart's to see if the cow had returned there, and to make arrangements to have her delivered at his place of business. He then made an agreement with a man named Simon (who had worked at odd jobs for Gerhart, and other dairymen, for some five or six years) to deliver the cow to Blase's slaughterhouse for fifty cents. The particulars of the evidence on this point will more fully appear further on.

The next day (or the second day) thereafter Simon borrowed Gerhart's horse and wagon, tied the cow to the rear of the wagon with a rope of his own and undertook to lead the cow to Blase's premises. The rope was tied around the cow's neck and a noose around her mouth. The other end of the rope was then fastened to the end of the wagon. Simon had engaged the services of a friend named Scheer to aid in the work he had undertaken.

The plaintiff is a man of advanced years, about sixty-five years old. He lived at No. 7614 North Broadway in St. Louis. He had been in business for many years as a landscape gardener, but lately had not been employed actively. His sons took the active work off his hands. The mishap to plaintiff occurred about noon, June 1, 1900.

According to his statement he was sitting on a bench at his front gate when the two young men came along Broadway with the cow tied as above described. Broadway is a public street of St. Louis at that point. As the cow got opposite plaintiff's gate she appeared to fall and to be in distress because of being so tightly tied. The wagon was stopped and the plaintiff called out some words of warning about "the cow being smothered," or words to that effect. One of the men in charge of the cow remarked that the cow was mean and would "poke" as soon as she got up. Plaintiff turned around and walked through his gate into the yard and hurried towards the door of his house, some twenty feet back from the street. Before he reached a place of safety, the cow which had gotten loose, ran up behind and struck him in the back. She knocked him down and trampled upon him. Bystanders rescued him and got him into the house. In the meanwhile he had been seriously injured by the cow's attack.

There was some conflict of evidence touching the exact movements of the plaintiff immediately before he was injured, but there is overwhelming proof that the cow attacked him in his own yard as he was endeavoring to escape into the house, and the jury so found in passing on the issues submitted by the instructions.

In a short time the cow was captured, tied to a telegraph pole and afterwards taken to Blase's place, where she was slaughtered the same day.

On the subject of defendant's knowledge of the vicious character of the cow, it appeared by testimony submitted by plaintiff, that the boy Speiser (who went with the colored man to get the cow from Gerhart's) had been attacked by the cow some days before the accident to plaintiff. According to this boy, the cow undertook to attack him again on the morning following his first trip to Gerhart's. This boy also testified that before the day of plaintiff's injury he had informed young Mr. Blase (one of the managers of the defendant's business) of this performance of the cow, but Mr. Blase paid little attention to the information and merely laughed.

To quote the language of the boy, touching notice of the vicious character of the cow, he informed the younger Blase, that the cow wanted "to buck him," and had "chased" him.

The defendant's evidence tended to contradict that given on behalf of plaintiff in some respects. But it does not seem necessary to comment upon the conflict of evidence except in those particulars which will be mentioned in the course of the opinion.

The place where the cow escaped was within the limits of the city of St. Louis on a public street--North Broadway.

The case was tried before Judge ZACHRITZ and a jury. There was a finding for plaintiff in the sum of one thousand dollars as against defendant Blase.

The other defendant, Gerhart, was relieved of liability by an instruction which declared that, under the pleadings and the evidence, plaintiff could not recover against said defendant.

After the usual motions and exceptions, the defendant took this appeal.

Any other facts necessary to elucidate the rulings of the court will...