Thyssen v. Davenport Ice & Cold Storage Co.

• Decision Date: 07 June 1907
• Citation: 134 Iowa 749,112 N.W. 177
• Parties: THYSSEN v. DAVENPORT ICE & COLD STORAGE CO.
• Court: Iowa Supreme Court

134 Iowa 749

112 N.W. 177

THYSSEN

v.DAVENPORT ICE & COLD STORAGE CO.

Supreme Court of Iowa.

June 7, 1907.

Appeal from District Court, Scott County; J. W. Bollinger, Judge.

Action at law to recover damages for personal injury. From a judgment for defendant upon a directed verdict, the plaintiff appeals. Affirmed.Ely & Bush, for appellant.

Lane & Waterman and Alfred C. Mueller, for appellee.

WEAVER, C. J.

On July 15, 1905, the defendant, being engaged in the ice business in the city of Davenport, sent out one of its delivery wagons in charge of an employé named Wagner. After starting upon the trip Wagner allowed his father-in-law, one Thomas, to get upon the wagon and ride with him and to assist in handling and delivering ice. The wagon having stopped in front of a house where a delivery was to be made, plaintiff, a child of eight years, with several other small children who were playing in that vicinity, drew near, but, being called by their parents, all withdrew except plaintiff. As the wagon stopped, Thomas went to the rear of the vehicle, and, taking up the tongs and a small tool known as a “chipper,” laid hold of a piece of ice, and turned to deposit it on the ground or to carry it into the house. As he swung around, the ice chipper in his hands struck the plaintiff in the eye, inflicting a wound from which it is alleged the child has suffered serious injury. For the damages thus sustained this action was instituted.

1. The original petition was drawn, and the case seems to have been tried by the plaintiff, on the theory that the relation of master and servant existed between defendant and Thomas, and that for the negligence of the latter in such service the former may be held liable. After the evidence had been introduced and a verdict for defendant had been returned, at the direction of the court, plaintiff filed a motion for new trial, in connection with which he tendered an amendment to his petition, alleging that Wagner was addicted to the excessive use of intoxicants and not a proper or competent person to be intrusted with the delivery of ice by the defendant, and that he was guilty of negligence in permitting Thomas, who also was intoxicated at the time, to assist in said work, and that the injury of the plaintiff was the proximate result of Wagner's said negligence. As plaintiff had chosen his ground, proceeded to trial, and submitted his case on the claim as stated in the original petition, we think he cannot be permitted to mend his hold after a verdict has been returned against him, and demand a new trial on another and materially different theory. There was, therefore, no error in refusing a new trial, unless we find there was evidence upon which the issue joined upon the original petition should have been submitted to the jury.

2. Upon that issue the case could well be disposed of on the ground that, even if Thomas were the agent or servant of the defendant, there is no showing of actionable negligence on his part. There is nothing in the record to show that he knew or should have known of the presence of the boy in a place of danger. His action in taking the ice from the wagon and turning around with it was neither unnatural nor manifestly improper, considering the service he undertook to perform. The holding of the chipper in his hand was not in itself negligence, unless he knew or ought to have known that the child was exposed to injury therefrom; and of this, as we have said, there is no proof. Hence, however unfortunate or regrettable the accident to the young plaintiff, there would seem to be an entire absence of testimony upon which to base a recovery of damages.

This view renders it unnecessary for us to go into a discussion of the interesting question argued by counsel concerning the liability of the...