130 Ky. 380 | Ky. Ct. App. | 1908
Opinion of he Court by
Reversing.
Oscar Robarás, suing by bis next friená, W. P. Robarás, instituteá tbis action against George Vanetta aná tbe P. Bannon Sewer Pipe Company to recover áamages for personal. injuries inflicteá by George Yanetta while acting as watchman for tbe P. Bannon Sewer Pipe Company. Tbe trial court' sustaineá the P. Bannon Sewer Pipe Company’s áemurrer to plaintiff’s petition aná amenáeá petition, aná
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 nighttimé; He states that on on about the 8th of December, 1907, this infant plaintiff was passing at and'dose 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, Vanetta, 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
Counsel for appellee insists that the court’s action in sustaining the defendant’s demurrer to the amended and substituted petition was also proper, for the reason that the pleadings are to be construed all together and most strongly against the pleader; that under this rule the plaintiff is bound by the allegation that he was actually running away from the property when he was shot by Yanetta. That being the case, it is insisted that under the rule laid down in the case of Golden v. Newbrand, 52 Iowa 59, 2 N. W. 537, 35 Am. Rep. 257, the act of Yanetta was not within the scope of his employment. While it may be the rule that a pleading and the several amendments thereto are ordinarily to be considered all together for the purpose of determining whether or not a cause of action is stated, we are of opiinon that, where a party files an amended and siibstituted petition in lieu of the original petition and its amendment, he thereby indicates a purpose to rely upon the amended and substituted petition as alone setting forth his cause of action. The question whether or not the latter pleading is demurrable depends altogether upon the allegations which it alone contains.
. The question, then, is whether or not the allegation that the plaintiff was “on or near said premises,” being considered from the standpoint of the weaker term (that is, that he was merely near said premises),' is conclusive evidence of the fact that Yanetta at the time of the shooting was not acting within the scope of his employment.
Let us, then, apply these principles to the facts’ as set out in plaintiff’s amended and substituted petition.
For the reasons given, the judgment is reversed and cause remanded, with direction^ to overrule the