115 Neb. 579 | Neb. | 1927
Betty Jean Wilson, a minor, suing by Taylor Wilson, her father, had judgment for $3,500 against Thayer County Agricultural Society and others for personal injuries, and the defendants appealed.
The evidence shows the plaintiff, then two years old, was taken by her father and mother on the' evening of Sep
• The Thayer Coúnty Agricultural Society was organized under section 6, ch. 1, Comp. St. 1922, by virtue of which, whenever 20 or more persons, residents of a county, shall organize themselves into a society for the improvement of agriculture, and shall have adopted a constitution and bylaws and shall have raised not less than $50 in any one year and certified the amount' to the county clerk, the coünty board shall levy a tax upon assessable' property,
In support of their first assignment of error, the defendants argue that the court erred in receiving any evidence over their objection, on the theory that the proceeding is one in reality against the county, and that this society is a part of the county organization and as such exercises authority of sovereignty and is a governmental agency. If the county itself had organized the society under authority of a vote of the people, by the power granted by the legislature ip section 57. supra, that objection might have pertinence. That question, however, is not before us, and is not decided here and is merely stated for the purpose of aiding a decision as to what was the legislative intent when the present society was provided for by legislative enactment. The legislature separately provided for agricultural societies organized by individuals and for agricultural societies organized by counties as conductors of fairs. Each must be separately tested as to its liabilities under the law. Defendants cite cases to the effect that mandamus will lie to compel the county board to act on a claim for a statutory allowance for the benefit of a county fair organized as this defendant was. That is true, but it is because such a claim is a claim against the county and must first be presented to the county board, upon whom the law places the
Defendants cite State v. Robinson, 35 Neb. 401, as authority for the conclusion that an agricultural society is a governmental agency and therefore supports the proposition that the suit here should have been instituted against the county. While in that case the court said that “agricultural societies are not corporations within the ordinary meaning of the term, but rather agencies adopted by the state for the purpose of promoting the interests of agriculture and manufacturing,” yet the case bears internal evidence to refute defendants’ application of it to the point in issue. It was a case where the agricultural society was suing the county to require the county to provide funds to pay the society the amount fixed by statute as due the society from the county. If plaintiff is capable of suing, it is, in the absence of a prohibitory statute, likewise capable of being sued; it is a separate entity from the county. It is adopted by the state or fostered by the state in the sense that the legislature provided for its creation and for certain uniform sustenance for the purpose of promoting the interests of agriculture. It is an agency'in the generic definition of that word, but it is not an agent in the legal sense that can bind a governmental principal and itself be relieved from liability on its owp contracts or for its own torts on the ground that it is a governmental agency as that term
■ Defendants complain that the court, during the examination of the mother as a witness, permitted the injuries of the child to be viewed by the jury for a period of 5 to 12 minutes. No objection was made to the exhibition, but merely to its length and to the use of her to illustrate the questions put to the mother and her answers. We do not find from the character of the evidence and what happened there, as shown by the record, that the court in any way abused its discretion or that the jury were likely to be stirred up unduly by this view of the child.
As to the complaint that the damages awarded are excessive, it appears, in addition to the scars as heretofore briefly described, from the evidence, that plaintiff was in the hospital and otherwise undergoing treatment for these burns for a long period. From her neck to her inter-mammillary line, the skin was burned off and the tissues were deeply involved so that nearly all of that area was disfigured in addition to the deep horizontal scar across the neck under the chin. The pain endured by this little child, just at the age when speech begins to dawn, must have been like the inarticulate suffering of some stricken animal. Her physical disability had not ended at the time of the trial three years later. She will always, to some degree, bear the stamp of the flame. It seems to us, therefore, that the finding of the jury on this point shows that the jury were not inflamed by the exhibition of the child at the trial and manifested restraint in their assessment of damages.
Considerable space in defendants’ brief and argument is devoted to a discussion of the alleged error of the court in receiving evidence and rejecting evidence, and relating to instructions concerning the relation of the parent to the
The society had a written contract with North American Fireworks Company of Chicago to exhibit displays of fireworks four nights of the fair. This injury occurred on the third night. The society, among other things, furnished and paid helpers to erect the necessary supports for the. fireworks and to aid in setting them off, though the expert direction was by a man sent by the company for that purpose. The defendants strenuously insist that the fireworks-company was an independent contractor, and-that the; defendants, therefore, are not liable for any tort that, may have been committed through the contractor’s-negligence;, and' that the trial court erred in holding as .a matter of.
“While it has often been held that the owner of premises, who has put an independent contractor in charge thereof, is relieved from liability for damage to persons injured by the acts of such independent contractor, on the other hand it is the duty of every one who does in person, or causes to be done by another, an act which from its very nature is liable, unless precautions are taken, to do injury to others, to see to it that those precautions are taken; and he cannot escape his duty by turning the whole performance over to a contractor. * * * The distinction is, when the work is one that will result in injury to others unless*587 preventive measures be adopted, the employer cannot relieve himself from liability by employing a contractor to do what it was his duty to do, to prevent such injurious consequences. It is one’s duty to so conduct his own business as not to injure another, and this duty continuously remains with the employer.”
Having employed the fireworks company to put on the exhibition and having furnished and paid part of the help in erecting and exploding the fireworks, the society cannot now say that its agent to do this work was an independent contractor and thus escape liability for any failure to do its duty, provided that failure is proved and submitted to the jury in due form.
The suit was against the defendants Thayer County Agricultural Society, Adam Kahle, Henry C. Struve, Paul Grupe, Richard W. Rodenburg, John Albrecht, George Barthel, Edward J. Mitchell, Albert Caughey, and Edward R. Henrichs. The court instructed the jury that the action had originally been brought against all of them, but that at a former trial the defendants Struve and Barthel had been relieved of liability by order of the court. The other defendants complain of this instruction. We fail to see how it prejudiced the other defendants both as the case then stood and by reason of our following discussion. The remaining personal defendants assign error in the failure of the court to eliminate them for lack of evidence of their personal liability. The amended petition describes these defendants as "the officers, directors and managers of the defendant association,” but does not allege any specific acts done by them or any one of them; nor do we find in the brief of appellee any reference to evidence proving any specific acts of these defendants showing that they participated in any acts of malfeasance toward the plaintiff, except they were managers and directors of the society. While this is a law case and we are not trying it de novo and we are under no obligation to read the evidence save as pointed out, yet the writer has searched the record in
Affirmed in part, and reversed in part..