Prater v. Buell

• Decision Date: 28 February 1949
• Docket Number: Gen. No. 9615.
• Citation: 84 N.E.2d 676,336 Ill.App. 533
• Parties: PRATER v. BUELL.
• Court: United States Appellate Court of Illinois

336 Ill.App. 533

84 N.E.2d 676

PRATER

v.BUELL.

Gen. No. 9615.

Appellate Court of Illinois, Third District.

Feb. 28, 1949.

Appeal from Circuit Court, Vermilion County; Ben F. Anderson, Judge.

Action by John Prater against Frank Buell for injuries resulting from alleged willful and wanton misconduct of defendant. From a judgment for defendant, plaintiff appeals.

Judgment affirmed.Acton, Acton, Baldwin & Bookwalter, of Danville (H. H. Acton and John M. Bookwalter, both of Danville of counsel), for appellant.

Bookwalter, Carter & Gunn, of Danville (A. L. Vollborn, Jr., Robert Z. Hickman and V. W. McIntire, all of Danville of counsel), for appellee.

WHEAT, Justice.

This is an appeal from an order dismissing plaintiff's amended complaint and entering judgment in favor of defendant. By the amended complaint, damages were sought for injuries resulting from the alleged wilful and wanton misconduct of defendant, which amended complaint substantially charged as follows: On December 2, 1946, and prior thereto, the defendant operated a farm whereon he owned a dairy herd consisting of numerous cows and one bull; that plaintiff was employed on the farm; that on many occasions prior to December 2, 1946, many persons, including the plaintiff, had requested the defendant to dehorn the bull to lessen the danger of harm and injury; that defendant wilfully and wantonly refused so to do but on the contrary thereafter did wilfully and wantonly, with utter disregard for the life and safety of plaintiff, tease, annoy, bait, beat, mistreat, and aggravate said bull by repeatedly and without warning, shoot, pester, and annoy such bull by means of a sling-shot and rocks kept by defendant in a bucket near the barn door, and by repeatedly and maliciously fastening a large seat cushion spring onto the horns, and by infuriating and aggravating the bull by beating and punching with a board. It was further charged that defendant performed other acts, which singly and together, greatly increased the vicious propensities and dangerous nature of such bull, and greatly increased the danger to the life and safety of the plaintiff, said defendant knowing at all times that the plaintiff in the performance of his duties as such employee would be required to place himself in close proximity to said bull without protection from the danger of attack. It is further charged that as a direct and proximate result of defendant's misconduct, and in disregard for plaintiff's life and safety, said bull became wild, vicious, mean, deceitful, and dangerous, all of which was known to defendant, so that on December 2, 1946, said bull did suddenly and without warning, attack and seriously gore with its horns the plaintiff, while he was bringing the herd into the barn pursuant to and in compliance with the specific orders and directions of the defendant, and, that as a result, plaintiff was injured, by reason of which he suffered the amputation of his right leg, and internal injuries accompanied by physical pain, and the necessary expenditures of large sums of money for medical treatment, resulting in permanent injuries, preventing him from engaging in gainful employment.

The amended complaint attempts to charge the defendant with wilful and wanton misconduct. Defendant's motion to dismiss was sustained and plaintiff suffered judgment by default on his refusal to plead further. Of the reasons assigned in the motion, only one need be considered: Must the amended complaint properly allege plaintiff's freedom from contributory wilful and wanton...