151 Ind. 42 | Ind. | 1897
Lead Opinion
The appellee sued the appellant in the superior court of Vanderburg county for damages arising from a personal injury caused by the falling of
One of the most important questions in the case arises upon the court’s refusal to give instruction number thirteen asked by the appellant, reading as follows: “If the plaintiff’s parents knew that the pile of lumber was in the street, and was dangerous and liable to fall, then it was their duty to exercise reasonable care in keeping the plaintiff away from the same;, and if they failed to exercise such reasonable care, and such failure directly contributed to the injury, then the plaintiff cannot recover.” The evidence was such as to make this instruction applicable if it expresses the law correctly on the facts. This instruction raises one of the most vexed questions in the law. It is well settled that an infant of tender years is deemed in law not possessed of sufficient discretion to make it guilty of negligence for its failure to exercise due care for its own safety. Shearman & Eedfield on negligence (3d ed.), 48 and note 1; 2 Thomp. Neg. 1181. On that point there is no conflict of opinion. But there is a sharp conflict of opinion between courts of last re
But it is contended by appellant’s counsel that the question here involved, namely, whether the contributory negligence of the parents of an infant plaintiff of such tender years as incapacitates it to exercise due care is imputable to the child, was not presented, considered, or decided in any of these cases. This claim is a little too broad. That question may not have been presented or considered in any of those cases, and we are inclined to think that is true. But in two of the cases only was it decided. It is recognized as established law everywhere that in an action by a parent on account of the death of such an infant of tender years under statutes for the death of the child caused by the negligence of the defendant and for loss of services where death did not ensue, at common law,
Upon what principle then, we are led to inquire, may its parent’s, guardian’s or custodian’s negligence be imputed to .it so as to take away its property in its cause of action for defendant’s negligence making it a cripple for life? We know of none unless this court ■ is by its previous decisions irretrievably committed to that doctrine.
The first case cited above, viz., Pittsburg, etc., R. W. Co. v. Vining’s Admr., supra, was a case where the father as administrator, recovered the judgment for the death of his son through the negligence of the defendant railway company. The judgment was rfe-' versed for error in overruling a demurrer to the complaint assigning for cause insufficiency of facts; (2) that the plaintiff had no legal capacity to sue as administrator of his infant son. It was held that the right of action by the statute was in the father as such, and not in the administrator, and it was further
The next case in which any question of the sort was involved, coming up before this court, was Lafayette, etc., R. R. Co. v. Huffman, supra, and that case did involve the precise question here involved, but it appears from the case that this court did not think any other or different question was presented than that presented and decided in the Yining case. There is not a word in the case that indicates that this court in
The most cogent reasons ought to be shown why ■such an inconsiderate judgment should bind this court to a rule thus inadvertently established, and without consideration of the real question involved and decided. We are now for the first time in the history of •our court asked to give the question consideration, and say whether in our judgment, the law imputes the parent’s negligence to the child non sui juris in such an action. The decision in the Huffman case is the principal barrier to such consideration and decision, and while it is the policy of the law not to depart from decisions previously made by a court of last resort, yet the same law does require such departure where adherence to such decisions would be productive of more
All the other cases decided by this court to which we have been referred, named in the forepart of this, opinion, including the Bowen case in 40 Ind., the last .case cited in the foregoing quotation with certain exceptions hereinafter mentioned, are cases where the parent sues for damages to him on account of loss of’ services at common law or under the statute, and the-rule was correctly applied that his negligence in exposing his child contributing to the injury defeated his action, which has no influence whatever on the question now before us. But the marked distinction
“The inquiry with respect to the effect of the negligence of the custodian of the infant, too young to be intelligent of situations and circumstances, was directly presented for decision in the primary case thus referred to. * * * * It is obvious that the judicial theory was, that the infant was, through the medium of its custodian, the doer, in part, of its own misfortune, and that, consequently, by force of the well known rule, under such (traditions, he had no right to an action. This, of course, was visiting the child for the neglect of the custodian, and such infliction is justified in the case cited in this wise: ‘The infant,’ says the court, ‘is not sni juris. He belongs to another, to whom discretion in the care of his person is exclusively confided. That person is keeper and agent for this purpose; in respect to third persons his act must be deemed that of the infant; his neglects the infant’s neglect.’
“In fact, this doctrine of the immutability of the misfeasance of the keeper of the child to the child itself, is deemed to be a pure interpolation into' the law, for until the case under criticism it was absolutely unknown; nor is it sustained by legal analogies. Infants have always been the particular objects of the favor and protection of the law. In the language of an ancient authority this doctrine is thus expressed; “The common principle is, that an infant in all things which sound in his benefit shall have favor and preferment in law as well as another man, but shall not be prejudiced by anything in his disadvantage.7 9 Yin. Abr. 374. * * * * Nothing could be more to the prejudice of an infant than to convert, by construction of law, the connection between himself and his custodian into an agency to which the harsh rule of respondeat superior should be applicable. The answer-' ableness of the principal for the authorized acts of his agent is not so much the dictate of natural justice as of public policy, and has arisen, with some propriety, from the circumstances, that the creation of the agency is a voluntary act, and that it can be controlled and ended at the will of its creator. But in the relationship between the infant and its keeper, all these decisive characteristics are wholly wanting. The law imposes the keeper upon the child, who, of course, can neither control nor remove him, and the injustice, therefore, of making the latter responsible.
“Nor is it to be overlooked that the theory here re
“It has already been observed that judicial opinion, touching the subject just discussed, is in a state of direct antagonism, and it would, therefore, serve no useful purpose to refer to any of them. It is sufficient to say, that the leading text writers have concluded that the weight of such authority is adverse to the doctrine that an infant can become, in any wise, a tortfeasor by imputation. 1 Shearm. & R., Neg. 75; Whart. Neg., section 311; 2 Wood Railway Law, p. 1284.” Newman v. Phillipsburgh Horse Car R. R. Co., 52 N. J. L. 446, 8 L. R. A. 842.
In the states of Alabama, Connecticut, Pennsylvania, North Carolina, Tennessee, Texas, Georgia, Vermont, Louisiana, Virginia, Maryland, Michigan, Mississippi, New Hampshire, Iowa, Illinois, Missouri, Nebraska, Ohio, New Jersey, and perhaps others, the doctrine of Hart-field v. Roper has been distinctly repudiated. The supreme court of North Carolina says: “The imputation of the negligence of parents and guardians to children of tender age is, says Shearman & Redfield (Vol. 1, 74), an invention of the supreme court of New York in the * * case of Hartfield v. Roper, 21 Wend. 615, and has been followed in many of the decisions of that state, although it is said
In reviewing the case of Hartfield v. Roper, supra, Mr. Beach says, that the doctrine, as applied to children too young to exercise discretion, is an anomaly, and in striking contrast with the case of a donkey which is carelessly exposed in the highway, and negligently run down and injured, and also with the case of oysters carelessly placed in the bed of a river, and injured by the negligent operation of a vessel, in both of which cases actions have been maintained. And he forcibly observes that under the principle referred to, the child, were he an ass or oyster, would secure a. protection which is denied him as a human being of tender years. Beach Contrib. Neg., section 415. This, author in his examination of the doctrine, remarks: “It is not true that an infant is not sui juris. In the sense of being entitled to maintain an action for his own benefit he is sui juris. As far as his, right of action is concerned he is in no respect the chattel of his father. * * * The judgment [when suing by guardian or next friend] if any is recovered,, is the property of the minor.” Beach Contrib. Neg. (2d ed.) section 128. The supreme court of Illinois, was classed by text writers and other courts as was, Indiana, as holding to the doctrine of Hartfield. v.
Tbe rule denying tbe doctrine of imputed negligence is now recognized and enforced by tbe courts of many of tbe states, and is supported by tbe rea
The supreme court of Georgia, in Atlanta, etc., R. W. Co. v. Gravitt, 93 Ga. 369, 26 L. R. A. 553, in an able opinion condemning Hartfield v. Roper, and speaking of this Illinois case, says: “In many of the text-books it is stated that the opposite view prevails in Illinois, and numerous decisions of the supreme court of that state are cited in support of this statement—seemingly with good reason. Be this as it may, however, that state, by its recent decisions, has ‘wheeled into
Iowa was also classed as one of the states holding to the doctrine of Hartfield v. Roper until Wymore v. Mahaska County, 78 Iowa 396, 6 L. R. A. 545, was decided in 1889. In that case the Iowa cases were reviewed, and it was held that the previous decisions ■of'that court had assumed, without deciding, that the true doctrine was that of Hartfield v. Roper, but in this latter decision the court distinctly and emphatically repudiated that doctrine.
We therefore conclude that these authorities announce and declare the only correct rule of law upon the subject, and hence the cases of Lafayette, etc., R. R. Co. v. Huffman, 28 Ind. 287, and Hathaway v. Toledo, etc., R. W. Co., 46 Ind. 25, in so far as they conflict with the conclusion here reached, are overruled. It follows that the court did not err in refusing the thirteenth instruction.
One of the cases decided by this court and cited by appellant’s counsel as sustaining the doctrine of Hartfield v. Roper is Louisville, etc., R. W. Co. v. Shanks, 132 Ind. 395. But that case does not so decide, but simply assumes that doctrine to be the law, both parties seeming to concede that such was the law.
Another one of the list of cases cited by appellant ■calling for special mention is that of Indianapolis, etc., R. W. Co. v. Wilson, 134 Ind. 95. The complaint was held bad in that case because it showed that the plaintiff, a boy nine years of age, was guilty of contributory negligence, notwithstanding its general averment that he was free from contributory negligence, the ■complaint having proceeded on the theory that he had sufficient age and discretion to be chargeable with negligence. No question about the imputabil
The only other case in the list cited by appellant not embraced in the class where the parent sues as parent for the death of the child under the statute or at common law for loss of services is Cleveland, etc. R. W. Co. v. Keely, 138 Ind. 600. No question of the imputability of the negligence of the parents or custodians was involved or decided in that case. The plaintiff was a boy, who was eleven years old when the injury occurred, suing by next friend. This court in answer to the objection that the complaint did not allege due care on part of the boy’s parents, observed: “The appellee in this case is suing for his own injury. He was himself capable of going to school across the railroad, and his parents are not in the casé, nor is, it necessary that they should be.”
The refusal of two other instructions is complained of by the appellant, reading as follows: “Seven. If at the time of the injuries complained of, the defendant had a contract with any person to furnish it with lumber by the year or otherwise, and to deliver the same to the city, and such person did in fact under such contract, deliver said lumber and pile the same in the street, then the act of such person or persons in delivering and piling the same was not the act of the city, and the city would not be liable for any negligence of such person in placing the same in the street, unless it had notice thereof, either express or implied.” “Twelfth. If the lumber mentioned in the complaint was not placed in the street by the city,, but was placed there by some one else, to be used in the construction or repair for a building, or for any other purpose, then the city is not liable for any accident resulting therefrom unless it had notice either express or implied, that the same was in the street,
The first paragraph of the complaint proceeded upon the theory, that the city itself placed the lumber in the street, and the second that it suffered it to exist after notice. There was evidence from which the jury might have inferred that the lumber was piled in the street by sawmill men with whom the city had a contract for its purchase and delivery. There was also evidence from which'the jury might have inferred that the lumber belonged to private persons, to be used in the erection of a dwelling house, and with which the city had nó connection whatever. The difficulty in determining the particular purpose for which and by whom the lumber was put in the street was greatly enhanced by the great length of time that had elapsed between the act and the bringing of the suit, being about twenty years. But if the city purchased lumber from outside parties, and such parties in delivering it, wrongfully piled it in the street, such vendor of the lumber in delivering it to the city was not the agent of the city, and the city was not liable for such act. The general rule is that a municipal corporation is not responsible for the negligence of an independent contractor with such corporation. Leeds v. City of Richmond, 102 Ind. 372; 2 Dillon Mun. Cor. (4th ed.) 1082. But, as was held in the former opinion in this case, a city which suffers an obstruction or cause of danger to remain for an unreasonable length of time upon its streets or sidewalks, so that the city might be presumed to have notice of the obstruction, would be liable therefor to the same extent as if the city had itself placed the obstruction or danger there in the first instance. Glantz v. City of South Bend, 106
Both of the instructions seven and twelve involve the principle of the necessity of notice to the city, express or implied, of the existence of the obstruction or danger, where the same has not been made by the city or some of its agents. As was said by this court in City of Fort Wayne v. DeWitt, 47 Ind. 397, borrowing from Dillon on Mun. Cor., sections 789, 790 (2d ed.) “The ground of the action is either positive misfeasance on the part of the corporation, its officers, or servants, or by others under its authority, in doing acts which cause the street to be out of repair, in which case no other notice to the corporation of the condition of the street is essential to its liability, or the ground of action is the neglect of the corporation to put the streets in repair, or to remove obstructions therefrom, or to remedy causes of danger occasioned by the wrongful acts of others, in which cases notice of the condition of the street, or what is equivalent to notice, is necessary, as will presently be stated, to give to the person injured a right of action against the corporation, unless, indeed, the matter be otherwise regulated by statute * * * *. Where the duty to keep its streets in safe condition rests upon the corporation, it is liable for injuries caused by its neglect or omission to keep the streets in repair, as well as for those caused by defécts occasioned by the wrongful acts of others. But, as in such case, the basis of the action is negligence, notice to the corporation of the defect which caused the injury, or facts from which notice thereof may reasonably be inferred, or proof of circumstances from which it appears that the defect ought to have been known and remedied by it, is essential to liability; for in such cases the corporation, in the absence of controlling enactment, is
The giving and refusing of other instructions are complained of, but what we have already said covers about all the vital questions involved in such other instructions. The circuit court erred in overruling the motion for a new trial. The judgment is reversed, and the cause remanded with instructions to grant a new trial.
Rehearing
On Petition for Rehearing.
Avery earnest petition for a rehearing, supported by a very elaborate brief, is presented in this case.
The first fault found with the original opinion is that we stated therein that the venue was changed from Vanderburgh to Warrick county before the first trial. We hasten to cheerfully correct the error, if error it is, by saying that the statement of appellee’s counsel is probably correct to the effect that the first trial took place in the superior court of Vanderburg county, resulting in a judgment in favor of the defendant. After the reversal of this judgment the cause was remanded to the trial court, and the venue was then changed to the Warrick Circuit Court. If we were “in .error” in this statement, as counsel says we were, we were excusable, because the record shows that the first trial that it gives any account of took place in the Warrick Circuit Court. We certainly ought not to be criticised for strictly follow
Appellee’s learned counsel, in support of the petition for a rehearing, says, that: “It is not our purpose to controvert any of the rules of law laid down by this court in its decision in this case. We believe, upon the other hand, that the law is correctly stated, and. we have at no time contended for a different statement.” And counsel proceeds to favor us with twenty-four printed pages of a brief in support of appellee’s petition for a rehearing. And in the very next statement in his brief, counsel, as to instructions seven and twelve, for the refusal of which wé reversed the judgment, says that, “both instructions seven and twelve are contrary to the law.” This, at least, seems a little difficult to understand. The principal defense made of the court’s refusal to give instruction twelve is that it was substantially given and sufficiently embraced in instruction number fifteen, given by the court to the jury. We would be fully justified in refusing to consider this point in support of appellee’s petition for a rehearing, because no such defense, of the refusal of that instruction was made by appellee’s counsel prior to the petition for a rehearing. It has often been decided by this court that a point made for the first time on a petition for a rehearing that might have been made before, is not entitled to notice. The correct and orderly administration of justice requires such a rule. Points must be made in the briefs filed before the decision of the cause, if they are to be- noticed on a petition for a rehearing. Glittering .generalities will not do in the place of points. But in this case there was not a word said,
There are many definitions to the word “deliver.” What particular meaning among its many definitions is to be assigned to the word depends on‘the connection in which it is used. The fourth definition given to it by Webster is: “To give forth in action or exercise; to discharge; as to deliver a broadside or a ball.” That is the same meaning the word has in the sentence, “To deliver the opinion,” “To deliver an address.” The word used in such a connection does not imply an act of the will on the part of some one else, nor an acceptance of anything. Such was the sense in which it was evidently used in instruction seven, as clearly indicated in the sentence reading: “And the city would not be liable for any negligence of such person in placing the same in the street, unless it had notice thereof, either express or implied.” If the court meant by the word “deliver,” in the previous part of the instruction, to imply an acceptance by the city, then there would have been no sense and no meaning in the words “unless it had notice thereof express or implied.” This is so because the city could not accept the lumber in a pile on the street without notice that it was there. The word “deliver” in the' instruction evidently was intended to mean the same that the word “placing” in the sentence above quoted from the instruction was intended to mean. Appel
It is next contended that because it turned out on the trial that the contract the city had with the sawmill men for the purchase of lumber was in writing, and oral evidence of its particular terms was excluded
The nature of the transaction, as disclosed by the evidence already alluded to, makes a much stronger case than Wabash, etc., R. W. Co. v. Farver, supra,
But the rule there laid down is much more applicable to the evidence here, because it clearly indicates that the only relation existing between the city and the sawmill men was that of buyer and seller, and not that of master and servant. And there being enough evidence to warrant and require the submission of the question of fact to the jury as to the true relation subsisting between the sawmill men and the city, the appellant had a, right to demand an instruction stating what the law was in case the jury found that the relation was not that of master and servant, but was merely that of buyer and seller. If they found that to be the relation, appellant had a right to an instruction that the negligent acts of the seller were not chargeable to the buyer. That the refused instruction seven would have done.
Another contention why the instruction was properly refused, is that the evidence was wholly insufficient to establish that there was any contractor in the case. But such contention assumes that it is the duty of the trial judge to determine that issue, as well as all other issues, in advance of the submission of the case to the jury, and if he thinks the evidence insufficient, after carefuly weighing it, pro and con, he need not submit it to the jury. But that is very far from the legal duty of the trial judge. If there is any evidence sufficient to warrant the jury in drawing the
We are constrained to hold that the trial court erred in refusing to give instruction seven, and therefore the petition for rehearing ought to be, and is, overruled.