Robards v. P. Bannon Sewer Pipe Co.

• Decision Date: 17 November 1908
• Citation: 130 Ky. 380,113 S.W. 429
• Parties: ROBARDS v. P. BANNON SEWER PIPE CO. et al.
• Court: Kentucky Court of Appeals

113 S.W. 429

130 Ky. 380

ROBARDS v. P. BANNON SEWER PIPE CO. et al.

Court of Appeals of Kentucky.

November 17, 1908

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

"To be officially reported."

Action by Oscar Robards, by his next friend, W. P. Robards, against the P. Bannon Sewer Pipe Company and another. Demurrers to the petition original and amended and to an amended and substituted petition were sustained, and plaintiff appeals. Reversed and remanded, with directions to overrule the demurrer to the amended and substituted petition.

Popham & Webster, for appellant.

Chas F. Taylor and Kohn, Baird, Sloss & Kohn, for appellees.

CLAY C.

Oscar Robards, suing by his next friend, W. P. Robards, instituted this action against George Vanetta and the P. Bannon Sewer Pipe Company to recover damages for personal injuries inflicted by George Vanetta while acting as watchman for the P. Bannon Sewer Pipe Company. The trial court sustained the P. Bannon Sewer Pipe Company's demurrer to plaintiff's petition and amended petition, and also to his substituted and amended petition; and the propriety of this ruling is before us for determination.

That portion of the petition necessary to be considered is as follows: "He states that the defendant P. Bannon Sewer Pipe Company is a corporation, created and existing by virtue of law, and as such has power to sue and be sued in its corporate name, to operate a general brickyard and brick manufacturing establishment in the city of Louisville, and to employ night watchmen and other persons to protect its property and conduct its said business. He states that the defendant George Vanetta was at all of the times hereinafter set out in the employ of defendant P. Bannon Sewer Pipe Company as its night watchman in said brick establishment and as such it was his duty to said company to protect from injury its said properties during the nighttime. He states that on or about the 8th day of December, 1907, this infant plaintiff was passing at and close to said brick establishment in said city, when he approached said establishment, and was then and there mistaken for a wrongdoer, burglar, or other law-breaker by the defendant P Bannon Sewer Pipe Company by and through its agent and night watchman, defendant George Vanetta, who suspected said infant of attempting to destroy or steal said property. He states that he was at said time and place acting in the peace, was guilty of no wrong or violation of law, and that the defendant P. Bannon Sewer Pipe Company by and through its agent and night watchman, Venetta, and the defendant Vanetta, severally and jointly, and with gross negligence, culpable carelessness, and recklessness, then and there set upon him, this infant, and he was then and there shot by said Vanetta with a firearm containing lead bullets or other hard substance, from the infliction of said gunshot wounds by said Vanetta this infant plaintiff was caused to and did, does and will in the future, suffer great mental and physical pain, has become and is obligated for great doctor's bills and expenses on account thereof, and his power to earn money has been materially lessened and impaired permanently, by reason of all of which he has been damaged in the sum of at least $25,000. He states that the defendant Vanetta was at said time and place acting as the night watchman, agent, and employé of his codefendant P. Bannon Sewer Pipe Company, and as such it was his duty to protect the property of said corporation, and was in the course of his employment as such at the time and place of the disaster and injury to this infant plaintiff hereinbefore set out by the infliction of the gunshot wound hereinbefore described." The demurrer of the P. Bannon Sewer Pipe Company to the petition being sustained, plaintiff amended his petition as follows: "For amendment to his original petition against defendant P. Bannon Sewer Pipe Company, plaintiff says that on the night complained of in his original petition he entered the property of defendant P. Bannon Sewer Pipe Company for the purpose of getting warm; that defendant George Vanetta, agent for defendant P. Bannon Sewer Pipe Company, then in charge of said property, directed plaintiff to leave said property; that as plaintiff was running away from said property defendant P. Bannon Sewer Pipe Company by its said agent in charge thereof negligently shot plaintiff as set out in his original petition." The demurrer of the P. Bannon Sewer Pipe Company being sustained to the petition as amended, the plaintiff filed an amended and substituted petition containing the following allegations: "That defendant P. Bannon Sewer Pipe Company is a corporation, created and existing by virtue of law, and as such has power to sue and be sued in its corporate name, to operate and control a general brickyard and brick manufacturing establishment in the city of Louisville, and to employ night watchmen and other persons to protect its property and conduct its business; that defendant George Vanetta was at all of the times hereinafter set out in the employ of defendant P. Bannon Sewer Pipe Company as its night watchman in said brick establishment, and as such he was authorized by said company to carry firearms to protect said property from injury during the nighttime, and was authorized to use such firearms whenever, in his judgment, it seemed necessary or advisable; that on or about December 8, 1907, while defendant Vanetta was acting as night watchman for defendant P. Bannon Sewer Pipe Company as hereinbefore set...