Imágenes de páginas
PDF
EPUB

and 106 New York State Reporter

authorized to find that he was responsible for injuries by this dog, unless he was relieved therefrom by the misconduct of the person who received the injury. As to the defendant Chisolm the case is somewhat different. It was conceded that he was the owner of the premises, but the claim was made that he had leased them to Wilson, and that Wilson had sole charge of the premises as lessee, and that Chisolm was not connected therewith, and had no control, either over Wilson or the premises, at the time when the dog was kept thereon and when he bit the plaintiff. If this were conclusively established, then it follows that Chisolm was relieved from liability for the act of the dog.. The case comes, therefore, to rest, in the main, upon the question as to whether Wilson was the mere agent and servant of Chisolm, or whether he was the lessee having sole control of the premises. It appears that Chisolm purchased the premises, consisting of a stable, at a foreclosure sale. It is not claimed that Chisolm ever executed any written lease of the premises to Wilson. The evidence upon the part of the plaintiff tended to establish that after the purchase Wilson took charge of the stable under an arrangement with Chisolm by which he was to rent stable room to persons desiring such accommodation, collect the moneys therefor, and pay the same over to Chisolm, less a certain percentage, which he retained as his compensation. At first Wilson was authorized to retain 30 cents on the dollar as his commission, as he expressed it, and subsequently Chisolm refused to allow that amount, and reduced it to 15 cents on the dollar. During the whole period Wilson collected the money and paid it over to Chisolm under this arrangement, and these were the terms under which Wilson had the custody and control of the premises in question. quite evident that upon this testimony the jury would have been authorized to find that Wilson was a mere agent of Chisolm tə rent the premises to persons for stabling accommodations, collect the rents, and pay them over to Chisolm, and that, in fact, the relation of landlord and tenant did not exist between these parties. If the jury had found such to be the fact, as they might upon the testimony, then it would follow that Wilson's possession of the property was the possession of Chisolm, and that the former was simply his agent. Under such circumstances, Chisolm would be chargeable with knowledge that the dog was harbored upon the premises, and also with knowledge of his vicious propensities, if it was found that Wilson possessed such knowledge, or that the dog had bitten other people. Quilty v. Battle, 135 N. Y. 201, 32 N. E. 47, 17 L. R. A. 521; Keenan v. Manufacturing Co., 46 Hun, 544; Muller v. McKesson, 73 N. Y. 195, 29 Am. Rep. 123.

It is quite evident that Wilson had notice, at least the jury might so find, that the dog had bitten one or more persons prior to his biting the plaintiff, and he had caused to be put upon the premises a notice to beware of the dog. If Wilson was Chisolm's agent, his knowledge became that of his principal, and, with that relation established as the jury might find it under the evidence, every element would be present charging Chisolm with liability for the injury which the dog inflicted. I am of opinion, therefore, that the plain

tiff made a case entitling him to go to the jury as to the liability of both defendants, and upon the questions upon which he requested to go to the jury. The plaintiff was not chargeable with contributory negligence as matter of law. That also became a question for the jury. Zwack v. Railroad Co., 160 N. Y. 362, 54 N. E. 785; Stone v. Railroad Co., 115 N. Y. 104, 21 N. E. 712. If the negli gence of the parent could be imputed to the child, it was still a question of fact, under all the circumstances of the case, as the jury might well find that in committing the boy to the custody of the driver they were not negligent.

It follows that the judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.

PATTERSON, J., concurs.

VAN BRUNT, P. J. I dissent. I do not think that any case was made out against either defendant.

MULLADY v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Division, Second Department. November 15, 1901.)

1. PERSONAL INJURIES-COMPLAINT-ALLEGATIONS-PROOF.

Where plaintiff alleged that he sustained serious and lasting bodily injuries to his head, limbs, and nervous system, it was not error to admit testimony of impaired hearing and eyesight.

2. SAME AMOUNT OF DAMAGE.

Where a passenger in a street railway car, who was injured in a collision, was absent from his regular work for less than two months, after which he continued doing full service, receiving full pay, and on application for promotion as a fireman passed the physical examination, and partially succeeded in various difficult athletic feats, a verdict of $6,500 on the ground that he could not work as he used to do, that his nervous system was affected, his back and leg stiff, and his hearing and eyesight Impaired, was excessive.

Hirschberg, J., dissenting.

Appeal from trial term, Kings county.

Action by John Mullady against the Brooklyn Heights Railroad Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Conditionally affirmed.

Argued before GOODRICH, P. J., and JENKS, WOODWARD, HIRSCHBERG, and SEWELL, JJ.

John L. Wells, for appellant.

S. S. Whitehouse, for respondent.

JENKS, J. The plaintiff complained that he "sustained serious and lasting bodily injuries and injuries to his head, limbs, and nervous system, as well as internal injuries." The appellant contends that it was error to admit testimony of impaired hearing and eyesight. In Quirk v. Siegel-Cooper Co., 43 App. Div. 464, 60 N. Y.

and 106 New York State Reporter

Supp. 228, we held, per Bartlett, J., that similar testimony was admissible under the allegation that the plaintiff "sustained serious and painful internal and other bodily injuries," refusing to restrict the words "bodily injuries" and their context so as to exclude such testimony. Kleiner v. Railroad Co., 162 N. Y. 193, 56 N. E. 497, mainly relied upon by the appellant, may be discriminated. In that case the plaintiff complained of serious and painful contusions to her head and body and arms, of laceration of the scalp, "whereby she sustained severe nervous shock and concussion of the brain, and injured her eyesight, and she was for a time rendered unconscious, and she thereby sustained permanent injuries"; and the court pointed out that, as the plaintiff had specified particularly several injuries, and had alleged that she thereby sustained permanent injuries, she thus, in effect, had limited her injuries to those previously alleged; and that, as it was proved that the maladies were due to the severe nervous shock, the "precise question" was whether the allegation of a severe nervous shock warranted proof of heart disease, vertigo, curvature of the spine, and of other ills. In the absence of any proof that such diseases necessarily and immediately flowed from a severe nervous shock, the admission of evidence of the disease was held erroneous. In the Kleiner Case, supra, the court say that "the obvious reason for the rule requiring special allegation of special damages is to apprise a defendant of any injury claimed to have been sustained which did not necessarily arise from the accident, so as to enable the party to prepare properly to litigate the question upon the trial, or at least to ascertain the facts as far as possible." Applying this rule to the Kleiner Case, it is clear that an allegation of severe nervous shock is not adequate or sufficient motive that the plaintiff would offer evidence of heart disease, vertigo, and curvature of the spine, in the absence of proof that they necessarily flowed from the nervous shock. Applying the rule in the case at bar, it cannot be said that "bodily injuries and injuries to the head" might not logically embrace injuries to the eye and to the ear. In Ehrgott v. Mayor, etc., 96 N. Y. 264, 267, 48 Am. Rep. 622, the ruling admitting testimony of a disease of the spine, although the disease was not specified, was sustained, as it was alleged that the plaintiff suífered "great bodily injury," and that he became and still continued sick, sore, and disabled, etc. I think that this case cannot be discriminated from the Quirk Case, supra, which permitted testimony. of injury to the eyesight under the allegation of bodily injuries. And I think it is clear that upon the same principle the term "injuries to the head" is broad enough to cover testimony of the impairment of sight and hearing resultant from an injury to the head.

The learned trial justice, in his opinion denying the motion for a new trial, halted before refusing to disturb the verdict, for the reason that there was no evidence that the injury to the plaintiff was progressive, but finally let the verdict stand for the reason that the appellate division had not disturbed verdicts equally large for injuries no greater. I know of no precedents that establish a schedule. of compensation for injuries, and certainly there is none that binds a trial court in the exercise of its sound discretion upon the facts

of any particular case. Prior decisions may guide and enlighten the court, and, in a sense, may constrain it, but they need not restrain it, for the reason that no two cases morally can present precisely similar circumstances of pain, suffering, impairment, or of loss. The plaintiff recovered a verdict of $6,500. He was a fireman in the service of the city, and is still in active service. While a passenger in a car, he was thrown against a seat as the result of a collision. He testified that his back and his ear were injured, and that his ankle was sprained. He remained in the hospital for two hours, was absent for less than two months from service, and after his return he received a vacation of ten days. He complains that he cannot work "as he used to do," that he cannot stoop down, that his nervous system is affected, that his back and legs are stiff and troublesome, that his hearing and his eyesight are impaired, and that he is troubled with insomnia. An expert, who examined him, diagnosed his trouble as a sprain of the spine, with a degree of spinal curvature that might be permanent, accompanied by pain and marked by permanency and loss of power, though he was unable to state to what extent the injuries might impair his work. On the other hand, it appears that he is doing full service and receives full pay; that he applied for promotion, was allowed to take the physical tests by his own physicians, passed the physical examination, and attempted the difficult athletic feats required by the examination. Though he partially failed in his athletics, yet he explains that he had had no previous practice therein. There is no evidence that his afflictions are progressive. I think that upon the proof the verdict is excessive, and that $4,000 is a full and adequate compensation in this case. So far as the extra allowance is concerned, I think that the record does not warrant any interference with a matter which so pre-eminently rests in the sound discretion of the trial justice. The judgment and order appealed from must be reversed, and a new trial granted, unless the plaintiff within 20 days stipulates to reduce the judgment to $4,000, and an extra allowance based thereon, in which case the judgment, as so modified, is affirmed, with costs.

GOODRICH, P. J., and SEWELL, J., concur. WOODWARD, J., concurs in result. HIRSCHBERG, J., dissents as to reduction.

Judgment and order reversed, and new trial granted, costs to abide the event, unless within 20 days plaintiff stipulate to reduce recovery of damages to the sum of $4,000, and extra allowance proportionately, in which case the Judgment as modified is unanimously affirmed, with costs.

72 N.Y.S.-58

and 106 New York State Reporter

HARTMANN v. BURTIS et al.

(Supreme Court, Appellate Division, Second Department. November 15, 19014 1. ATTACHMENT-ACTION ON BOND-MEASURE OF DAMAGES.

The measure of the owner's damages in a suit on an attachment bond is not the value of the property sold under execution in the same action, but only the costs awarded on vacation of the attachment warrant, and interest on the value of the property for the time it was held under the attachment; it not appearing that in vacating the attachment the court held it void ab initio.

2 SAME-DE MINIMIS NON CURAT LEX.

In a suit on an attachment bond, where a judgment for plaintiff was correct, except in failing to allow him interest on $400 for 15 days, the error was too insignificant to furnish ground for reversal.

Appeal from special term, Nassau county.

Action by Joseph Hartmann against John R. Burtis and another. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ.

Lincoln B. Haskin, for appellant.

Henry P. Keith (J. W. Demarest, on the brief), for respondents.

WILLARD BARTLETT, J. In an action in the county court of Nassau county brought by John R. Burtis against Joseph Hartmann, a warrant of attachment against the property of Hartmann was granted by the county judge upon an undertaking in which John R. Burtis and John W. Burtis bound themselves, if Hartmann recovered judgment, or the warrant should be vacated, to pay all costs which might be awarded to Hartmann, and all damages which he might sustain by reason of the attachment, not exceeding the sum of $750. The sheriff made a levy under the warrant, and seized a considerable quantity of Hartmann's goods. Subsequently under an execution in the same action the sheriff sold the goods for the aggregate sum of $402. The attachment was still in force at the time of this sale. It was afterwards vacated, however, by an order of the county court; and the present action is brought by Hartmann against the parties who signed the undertaking to enforce their liability thereunder. The learned judge before whom the case was tried held that the plaintiff had proved no damage, except the sum of $10 which was awarded to Hartmann as costs by the order of the county court vacating the warrant. Accordingly he directed a verdict in favor of the plaintiff for that amount, and the plaintiff has now appealed on the ground that upon the proof he was entitled to recover a larger sum against the sureties.

I think the fact that the property brought $402 upon the execution sale was some evidence that it was worth that amount. The goods were held by the sheriff 15 days under the attachment, so that the utmost damage which the evidence shows the plaintiff herein to have suffered, which is chargeable against the sureties upon the undertaking, is the lawful interest upon $402 for 15 days. This

« AnteriorContinuar »