(208 Fed. 274)

NOONEY v. PACIFIC EXPRESS CO.†

(Circuit Court of Appeals, Eighth Circuit. October 1, 1913.)

No. 3,880.

1. MASTER ANd Servant (§ 125*) — INJURIES - FRACTIOUS ANIMAL-KNOWLEDGE OF MASTER.

The rule that a master is not liable for injury caused by the vicious conduct of a domestic animal in the absence of previous knowledge should not be applied to injuries sustained by the fright of a young country horse when subjected to the terrors of a modern city street.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 243251; Dec. Dig. § 125.*]

2. MASTER AND SERVANT (§ 109*)-INJURIES TO SERVANT-UNBROKEN HORSE -"INSTRUMENTALITY."

Where an express company furnished a driver a young country horse, not city broken, to be driven at a single wagon, the horse was an "instrumentality" within the rule that the master is bound to exercise reasonable care to furnish the servant with reasonably safe instrumentalities with which to perform the service.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 204; Dec. Dig. § 109.*]

3. MASTER AND SERVANT (§ 278*)—INJURIES TO SERVANT-UNBROKEN HORSE. Defendant express company purchased a country horse six years of age, and brought him to the city for use in its delivery service. He was seriously frightened at street cars and automobiles. For two days he was driven double with a city broken horse, when plaintiff was directed to hitch him to a single wagon and use him in the package delivery service. On the first day the horse behaved badly, and plaintiff reported the fact to the superintendent, who directed him to try the horse another day. On approaching a street car on that day the horse was greatly frightened, reared on its hind legs so that it nearly fell over backward, and when it came down kicked with its hind feet, striking plaintiff's ankle and causing the injury complained of. Held, to justify a finding that the horse had not been properly broken to city life, and that defendant was negligent in assigning the horse to plaintiff to drive single.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.*]

4. MASTER AND SERVANT (§ 220*)—INJURIES TO SERVANT-ASSUMED RISK. Where plaintiff, after being given a horse to drive in defendant's service that was not city broken, explained to defendant superintendent the misbehavior of the horse, and was directed to try him for one more day, such direction exonerated plaintiff from assuming the risk of injury while using the horse during that day.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 625-637, 641, 644-647; Dec. Dig. § 220.*

Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]

In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.

Action by John Nooney against the Pacific Express Company. Judgment for defendant, and plaintiff brings error. Reversed, with directions.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes ↑ Rehearing denied December 18, 1913.

Ford W. Thompson, of St. Louis, Mo. (W. B. Thompson, of St. Louis, Mo., on the brief), for plaintiff in error.

Moses N. Sale, of St. Louis, Mo. (J. L. Minnis, of St. Louis, Mo., on the brief), for defendant in error.

Before HOOK and SMITH, Circuit Judges, and AMIDON, District Judge.

AMIDON, District Judge. The plaintiff was the driver of one of defendant's express wagons in the city of St. Louis. The defendant purchased a horse in the country, six years of age, 16 hands high, weighing about 1,250 pounds. The horse had never been city broke. It was brought to St. Louis in a car, and taken to defendant's barn. On the way to the barn it showed great fear of street cars and automobiles. In accordance with defendant's practice, this horse was first hitched up with an experienced horse, to a double express wagon weighing about 3,300 pounds. It was driven in this way for two days. Then plaintiff was directed by the foreman of the stable to hitch the horse to a single wagon, and use it in the distribution of express matter. As a safeguard the superintendent directed an experienced driver to accompany the plaintiff. On the first day the horse behaved badly, plunging and rearing, sometimes leaping upon the curbing, and at one time nearly leaping into another carriage. Owing to the terror of the horse, whenever possible the plaintiff drove along alleys where street cars and automobiles would not be encountered. Upon returning to the stable about noon of the first day, plaintiff was asked by the superintendent how the horse behaved, and explained to him its behavior. The superintendent then directed the plaintiff to try the horse for another day in company with the same driver. On this day the horse continued to behave badly. When all the parcels had been delivered but the last, the journey led along Laclede avenue, upon which a double street car track is laid. A car was approaching from the opposite direction in which the plaintiff was driving. At the point where he was about to meet the car, there was another horse and wagon standing next to the curbing, so the plaintiff was obliged to swerve out towards the track upon which the car was approaching. The horse was greatly frightened by the car, reared on its hind legs, so that it nearly fell over backward, and when it came down it kicked with its hind feet, striking plaintiff's foot and ankle, producing the injury for which the action was brought. This was the first time that the horse had kicked. The horse was used by the defendant for one more day in a double rig, and then returned to the country. At the conclusion of plaintiff's case showing these facts, the court directed a verdict in favor of defendant, and plaintiff brings error.

[1-3] Defendant contends that this case falls within the ancient rule of the common law that in order to make a master liable for injury, caused by the vicious conduct of a domestic animal, the master must have known of the vicious character of the animal-that every horse is entitled to one kick, the same as every dog is entitled to one bite. The rule had its origin in an agricultural community long before do

mestic animals were subjected to the contrasts between the quietness of the country and the terrors of a modern city street. It has not for years been looked upon with favor, and we do not think that it should be applied in any field outside of that which is covered by authority. If it were necessary to apply the rule in this case we think there was sufficient evidence to show scienter. The cause of injury was not that the horse was "possessed of an evil propensity and accustomed to attack and injure mankind," according to the formula of the old common law. On the contrary, the conduct of the horse was due to the fact that it had been taken from the quietness of the country and plunged into the terrifying environment of a great city, without proper training, and of the effect of this change upon the horse defendant had abundant knowledge. The case, however, properly falls within a more recent, as well as a more just, rule. The master is required to furnish his servant with reasonably safe instrumentalities with which to perform his service. Here the horse was such an instrumentality in precisely the same sense as the wagon. The duty of the master was to exercise reasonable care to furnish the plaintiff with a reasonably safe horse for the performance of his service; and the whole question is, Was there evidence which made a case that ought to have been sent to the jury to decide whether or not what the defendant did with respect to this horse constituted the exercise of reasonable care? The evidence showed that the horse was a green, country animal, wholly inexperienced in regard to the city. The defendant was bound to know the effect of exposing such a horse to the cars and automobiles of city streets. If such a horse had been given to the plaintiff without any previous testing of its behavior in the city, all would agree that such conduct would have been negligent. The defendant did not do this, but it did place him in charge of a horse which had not been properly broken for single driving; at least, the evidence was sufficient to carry that question to the jury. It was not necessary that defendant should have known that the horse would be guilty of the particular misconduct which resulted in plaintiff's injury. Defendant was bound to know that a green horse, under such circumstances, was likely to do some act which would cause injury to the driver, and among the acts which it had reasonable cause to anticipate was that such a horse, if sufficiently maddened with fright, would kick. We think the jury would have been justified in finding, under the evidence, that the horse had not been properly tried out and broken to city life in the two days' experience with the double wagon, and that the master was rot in the exercise of reasonable care when it turned the horse over to the plaintiff for use upon a single wagon. The court, therefore, erred when it disposed of the issue as a question of law.

[4] We do not think the plaintiff assumed the risk of injury from using the horse on the second day, because of his knowledge of its behavior on the first day. He made a full statement of the conduct of the horse to the superintendent, and was directed to try him for one more day. This was tantamount to a complaint with a promise to repair in the case of an ordinary instrumentality. Plaintiff was

not employed as a horse trainer, but as an ordinary driver, and we think the direction of the superintendent, under the circumstances disclosed by the evidence, exonerated plaintiff from assuming the risk of injury from the continued use of the horse.

The judgment is reversed, with directions to grant a new trial.

(208 Fed. 277)

GILMORE & P. R. CO. v. UNITED STATES FIDELITY & GUARANTY CO. (Circuit Court of Appeals, Third Circuit. October 29, 1913.) No. 1,745.

1. PRINCIPAL AND SURETY (§ 59*)-SURETY CONTRACT-CONSTRUCTION. While a modern surety company is not entitled to receive the same degree of protection that courts of equity extend to individual sureties, a surety company is nevertheless entitled to have its contract interpreted according to the ordinary rules of law.

[Ed. Note. For other cases, see Principal and Surety, Cent. Dig. §§ 103, 1032; Dec. Dig. § 59.*]

2. PRINCIPAL AND SURETY (§ 78*)—FUNDS SECURED “DEPOSIT"-Purchase of EXCHANGE-SURETY BOND.

Where a railroad company's agent took cash, individual checks, etc., to a bank in which his company maintained an inactive deposit account and obtained therefor a cashier's check to the order of the railroad company which he sent to its head office to be deposited and thereafter collected through another bank, such transaction constituted a purchase of exchange and not a deposit of the railroad company's funds within a bond securing deposits.

[Ed. Note. For other cases, see Principal and Surety, Cent. Dig. § 124; Dec. Dig. § 78.*

For other definitions, see Words and Phrases, vol. 2, pp. 1995-1999; vol. 8, p. 7634.]

In Error to the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.

Action by the Gilmore & Pittsburgh Railroad Company against the United States Fidelity & Guaranty Company. Judgment for plaintiff for less than the relief demanded, and it brings error. Affirmed.

A. O. Fording, of Pittsburgh, Pa., for plaintiff in error. Charles F. Patterson, Frank W. Stonecipher, and John M. Ralston, all of Pittsburgh, Pa., for defendant in error.

Before GRAY, BUFFINGTON, and MCPHERSON, Circuit Judges.

J. B. MCPHERSON, Circuit Judge. This case was submitted to Judge Orr without a jury upon an agreed statement of facts, which may be summarized as follows:

The railroad company owns and operates a line in the states of Montana and Idaho. The eastern terminus is at Armstead, a smali village in Montana, where connection is made with the Oregon Short Line, and one of its western termini is at Salmon, a town in Idaho. During the period in question a single train ran each day (Sundays

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

excepted) between these points, moving east on one day and west on the next. The railroad maintained, its operating department at Armstead, but (as Armstead had no bank) most of the department's banking business, including its active account, was kept at the First National Bank of Dillon, a town on the Oregon Short Line about 30 miles distant. There were two mails a day between Armstead and Dillon, and one mail on alternate days between Armstead and Salmon. The railroad company had carried an ordinary deposit account with the Salmon Bank since April 2, 1910. It was not a very active account, for it only comprised a deposit of $10,000 on April 2d and seven checks drawn against this credit in August and September by which the credit was reduced to $125.99. In March, 1911, the bank asked the railroad company to deposit a part of its current funds, and on March 29th the bank was designated as a depository of such funds. Accordingly on April 19, 1911, a further sum of $10,000 was placed to the railroad's credit. On May 3d the bank, as principal, and the United States Fidelity & Guaranty Company, as surety, executed a bond to the railroad company, as obligee, in the penal sum of $10,000, reciting that the railroad company had designated the bank "as depository of the funds of the Gilmore & Pittsburgh Railroad Company Limited," and providing that the bank should "faithfully account for and in due and ordinary course of business pay over on legal demand all moneys deposited with said (bank) by or on behalf of the said (railroad company)." No other checks were drawn against this ledger account, so that the sum of $10,125.99 was due thereon to the railroad company on June 8, 1911, the day when the bank closed its doors. As security for this deposit the railroad had another bond of $10,000 in another company; this additional bond diminishing the Fidelity and Guaranty Company's obligation by one-half. The Fidelity Company admitted liability for one-half the sum just named, and the District Court entered judgment for this amount; but the railroad company alleged that a further sum of $3,280.34 was covered by the terms of the bond, and for this amount the Fidelity Company denied liability and in this contention was sustained by the court. The remaining facts that relate to the dispute are as follows:

Beginning with April 24, 1911, the railroad company's station agent at Salmon had regularly used the following method of transmitting his collections: At frequent intervals he would take to the Salmon Bank such cash and individual checks (duly indorsed) as were in his hands and would obtain therefor a cashier's check to the order of the railroad company. This check would be sent at once to the company at Armstead; the company would mail it to Dillon and deposit. it there; and the Dillon Bank would thereupon mail it to the Salmon Bank for presentation and collection. The agent at Salmon did not deposit the cash and the checks to the credit of the railroad company's ledger account there; and the cashier's checks were not so deposited. No checks were drawn against that account either by him or by any one else. The method just referred to of obtaining and collecting cashier's checks was followed on 19 occasions during April and May,