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ration, instead of alleging that it was a copartnership, and in not stating the names of the members of the copartnership, it obtained leave of the court and amended its petition so as to correct these errors or mistakes; and this we think it had a right to do. City of Atchison v. Twine, 9 Kan. 350; Hanlin v. Baxter, 20 Kan. 134; Paola Town Co. v. Krutz, 22 Kan. 726; Reed v. Cooper, 30 Kan. 574; S. C. 1 Pac. Rep. 822; Tibbs v. Parrett, 1 Cranch, C. C. 177; Beattie v. Hill, 60 Mo. 72; State v. Shelby, 75 Mo. 482; Lewis v. Locke, 41 Wt. 11; Phelps Manuf"g Co. v. Enz, 19 Conn. 58; Barber v. Smith, 41 Mich. 138; S. C. 1 N. W. Rep. 992. It has been held that an attachment by a non-resident partnership in the firm name is not void. Cady v. Smith, 12 Neb.628; S. C. 12 N. W. Rep. 95; Barber v. Smith, 41 Mich. 138, 143, et seq., S.C. 1 N. W. Rep. 992. And it has also been held that a judgment rendered against a defendant, omitting his Christian name, cannot be considered as void. Newcomb v. Peck, 17 Vt. 302.
The appearance of the defendants to file the motion to dismiss the plaintiff's action because of the want of jurisdiction, and the appearance in support of such motion at the hearing thereof before the court, were only special appearances for the purpose of contesting the jurisdiction of the court, and, of course, would not have given the court jurisdiction of the persons of the defendants. But as the court already had jurisdiction of the persons of the defendants by the prior appearances made by them, we think the court erred in sustaining such motion, and in dismissing the plaintiff's action. For this error, such order and judgment of the court below must be reversed, and cause remanded for further proceedings.
(All the justices concurring.)
(34 Kan. 334)
Filed November 7, 1885.
1. MASTER AND SERVANT—IMPOSING HARD LABOR ON YOUNG GIRL.
In an action by a parent to recover damages for the willful negligence and misconduct of the defendants towards his infant daughter while in their service, the plaintiff alleged that the daughter was an inexperienced girl of tender years, who was employed by the defendants as a house servant to do such work as was suitable to her years and strength, and that during her employ. ment her menses began, causing her great pain and sickness, and that after gaining her confidence the defendants took advantage of her weakness, youth, and inexperience, and in order that she might continue in their service, and perform a great and unusual amount of labor for them, they negligently, Willfully, and wickedly advised her that menstruation was a dangerous disease, likely to cause insanity and death, and that the best and only known remedy therefor was hard and unremitting labor; and that by reason of this advice, and the influence exerted upon her by the defendants, she was exposed to danger and hardship, and made to do work for them far beyond her strength, and compelled to perform the labor of two persons, by reason of which she became very sick, and was permanently crippled and disabled, and that ever since that time her father has been not only deprived of her assistance and service, but has been compelled to expend for her care and medical attendance
a large sum of money. Held, upon the demurrer, that the petition stated a cause of action in favor of the plaintiff and against the defendants. 2. SAME—DUTY OF EMPLOYER.
In such a case the defendants were bound to exercise ordinary care and diligence to protect her from injury in the course of the employment; and as the servant was an infant of tender years, a higher degree of care and a greater precaution was required of the defendants than if she had been an adult of ordinary intelligence and judgment.
Error from Republic county.
Peter Larson brought an action in the district court of Republic county against Charles Berquist and Sarah Berquist, and in his petition alleged:
“The above-named plaintiff, Peter Larson, complains of the above-named defendants, Charles Berquist and Sarah Berquist, his wife, for that heretofore, to-wit, from the fall of 1882 until fall of 1883, the plaintiff’s daughter, Tilda Larson, a minor, then and now under the age of 18 years, was employed by defendants as a servant in their house to do about the same such work as was suitable for a person of her years and strength; and, to receive therefor her board and clothing, except for the last six months of said employment, when she was to receive instead of clothing the sum of $1.25 per week. That the said minor was of tender years and delicate health; and, her mother having died several years previous to the dates above, she looked to and depended upon the said defendant Sarah Berquist for a mother's advice, which both defendants well knew. That during the time of her said employment her menses began, and caused her great pain and sickness, of all which she informed defendants. That they, well knowing her weakness and inexperience, and the confidence she placed in them, for the purpose of inducing her to do and perform for them a large amount of work and labor, more than she or any one else was able to do, carelessly, negligently, willfully, falsely, and wickedly pretended and represented to her that her said menstruation was a dangerous and unusual disease, very likely to produce insanity and death, and that the best and only known remedy was constant, hard, and unremitting work and labor. That the said Tilda, believing said representations, to recover her health and to avoid said pretended evils, did then and there perform for said defendants a great amount of work and labor far beyond her strength; among other things, rising about 5 o'clock in the morning, and remaining on her feet continuously until about 10 or 11 o'clock at night, milking daily from eight to fourteen cows, carrying water quite a distance up hill for from 20 to 40 head of hogs, digging and bringing potatoes from the field, cooking and helping to cook for a family of from 6 to 8, caring and helping to care for several young children of defendants, scrubbing the floors, and many other things too numerous to mention; compelling her to do the work that two stout girls had done before. That, also, at one time during Said time she was, by command of defendants, engaged in helping them prevent their hogs escaping from corral, and for that purpose had caught and was holding by the ears a large hog, when defendant Charles Berquist in a rude, rough, and angry manner threw a large stone, barely escaping said Tilda's person, and striking said hog on the head and face, or snout, causing its instant death, and so frightening said Tilda that she fainted and suffered great pain. And in general the whole conduct to and treatment of the said Tilda by the Said defendants was so careless, negligent, willful, and criminal, refusing to allow her rest until in her weakness she repeatedly fainted, that by means thereof, including all above alleged, she became very lame, sick, sore, crippled, and disabled, and must so remain for life, unable to do or perform any Work for or render any assistance to the plaintiff, her father, so that ever since said employment he has been wholly deprived of her assistance and Service, and instead thereof has been obliged to and has paid out for care, nursing, and medical attendance, in endeavoring to give her relief, the sum of $500, all with damage in the sum of one thousand dollars, for which, with costs of suit, and such other relief as he may be entitled to, he prays judgment.”
The defendants demurred to the plaintiff's petition upon the ground that it did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendants, or either of them. The demurrer was submitted to the district court at the October term, 1884, and sustained; and the plaintiff not desiring to plead further, judgment was rendered in favor of the defendants for their costs, to which rulings and judgment the plaintiff at the time excepted, and brings the case here for review. A. D. Wilson and F. W. Sturges, for plaintiff in error. J. W. Sheafor, for defendants in error. JoHNSTON, J. This action was brought to recover damages for the alleged willful negligence and misconduct of the defendants towards the plaintiff's minor child while she was in the service of the defendants. The question raised by the defendants’ demurrer, and the only one presented for our determination, is whether the plaintiff in his petition states a cause of action against the defendants. It is conceded that the parent is entitled to indemnity for wrongful injury to his minor child where a loss of service results from such injury. In such a case the loss of service is the gist of the action, and where there is no injury in that respect no recovery can be had. It is alleged that the plaintiff's daughter was a minor child of tender years, and was employed for a period of two years as a house servant to Porform such service as was suitable for a person of her years and strength. As compensation she was to receive board and clothing for the first 18 months of the term of service, and during the last six months of the term she was to be paid, in lieu of clothing, $1.25 per week. In such a case it was the duty—and there was an obligation upon the defendants, implied by the law as an incident to the contract—to treat the plaintiff's daughter humanely and reasonably. They were bound to exercise ordinary care and diligence to protect her from injury in the course of the employment, and their failure in that respect will make them responsible in damages. A higher degree of care and a greater precaution is required of the master where the servant is an infant, and has not yet reached the years of judgment and discretion, than in a case where the servant is an adult person of ordinary intelligence and judgment. Robinson v. Cone, 22 Vt. 213; Rauch v. Lloyd, 31 Pa. St. 358; Coombs v. New Bedford Cordage Co., 102 Mass. 572; O'Connor V. Adams, 120 Mass. 427; Smith v. O'Connor, 48 Pa. St. 218; Hill v. Gust, 55 Ind. 45; Sullivan v. India Manuf"g Co., 113 Mass. 396; East Saginaw City Ry. Co. v. Bohn, 27 Mich. 503; Cooley, Torts, 553, and cited cases. It is stated in the petition that the plaintiff's daughter was an inexperienced girl of tender years, and that during the employment her menses began, causing her great pain and sickness; that after gaining her confidence the defendants took advantage of her weakness, youth, and inexperience, and, in order that she might continue in their service, and perform a great and unusual amount of labor for them, they negligently, willfully, and wickedly advised her that menstruation was a dangerous disease, likely to cause insanity and death, and that the best and only known remedy therefor was hard and unremitting labor. It is alleged further that, by reason of these representations and the influence wrongfully exerted upon her by the defendants, she was exposed to danger and hardship, made to do work for them far beyond her strength, and that they compelled her to perform the labor of two persons, by reason of which she became very sick, was permanently crippled and disabled, and ever since that time her father has been not only deprived of her assistance and service, but has been required to expend, for necessary care, nursing, and medical attendance, the sum of $500. If the facts are as recited in the petition, they show that the defendants not only failed in their duty, but were grossly negligent of the plaintiff's daughter. Their conduct towards her was wanton and cruel in the extreme, for the consequence of which, if there is no concurrent negligence of the plaintiff, the defendants are answerable. By the strongest principles of morality and good faith they should have given her reasonable care and honest counsel. At no period of her life was such care more important or necessary. She was a motherless girl of tender years, who relied, as the defendants knew, upon their advice. For the purposes of gain they misused her confidence, took advantage of her immaturity and her lack of discretion and judgment, and directly caused and compelled her to do that which resulted in great and permanent injury to herself, and consequent loss to her father. It is said by the defendants that she was under no obligation to perform labor beyond her strength, and might have declined the service exacted under the requirements of the contract; and, also, that she had no right to rely upon misrepresentations of the defendants, as she had equal means of information with them. This would be true if the person injured had been an adult of ordinary prudence and discretion; but, as we have seen, a different rule applies in the case of a child of tender years, who is unable to appreciate the dangers to which she would be subjected in performing the service required of her. It is said that the petition does not state the age of the plaintiff's minor child, and that there is nothing to show that she had not the intelligence and judgment of an adult. In this respect the petition is somewhat faulty; but if they desire to assail the petition upon the ground of indefiniteness and uncertainty, it should be done by a motion instead of a demurrer. While the exact age of the plaintiff's daughter is not stated, enough is alleged to make it appear that she was immature, and did not have the capacity and discretion to understand her condition and the dangers of the extraordinary service which the defendants wrongfully induced her to perform. Besides, it is averred, in express terms, that she was a delicate, inexperienced girl of tender years. She was therefore not bound to the same rule of care and diligence in avoiding the consequence of the defendants' neglect that would be required of adult persons of ordinary intelligence and discretion. If it should appear upon the trial, as is now claimed by counsel for defendants, that no willful wrong was done by defendants, and that the girl was of sufficient age and capacity to understand the dangers incurred by her in doing the work directed to be done, and that she neglected the duty of self-protection, no recovery could be had by the plaintiff, as the negligence of the girl would be imputed to the father; and if the father consented to the wrongful action of the defendants, or in any way co-operated in producing the injury, it would defeat a recovery in his favor. However, these are matters of defense which do not appear upon the face of the petition, and therefore need no consideration now. We are of opinion that the court erred in sustaining the demurrer, and its judgment will be reversed and the cause remanded for further proceedings. (All the justices concurring.)
(34 Kan. 326)
Filed November 7, 1885.
MASTER AND SERVANT— DEFECT IN MACHINERY-INJURY TO RAILROAD EMPLOYE. In an action by a yard switchman against a railroad company in whose employ he had been for injuries alleged to have resulted in consequence of a defect in the draw-bar of a car, or in some of its accompanying appliances, held, that no recovery can be had against the railroad company except by proof of negligence on its part, and that it devolves upon the plaintiff to prove the negligence, and to prove all the facts which constitute or make apparent such negligence; and therefore, where it was not shown that the railroad company had any knowledge of the defect existing in the draw-bar or in some of its accompanying appliances prior to or at the time of the injury, or that such defect had existed for any considerable length of time, nor what was the nature or character of the defect; that it was obvious or manifest, or could have been discovered by the exercise of reasonable care and diligence, or by any of the tests employed by car inspectors; nor that the car had not been properly inspected by the car inspectors at the yard where the injury is alleged to have occurred: held, that no negligence is shown on the part of the railroad company, and that no cause of action against the railroad company has been proved.
Error from Wyandotte county.
This was an action brought in the district court of Wyandotte county on May 31, 1883, by Isaac J. Ledbetter, against the Atchison, Topeka & Santa Fe Railroad Company, to recover damages for personal injuries alleged to have been received by the plaintiff while in the employment of the defendant at Emporia, Kansas, on November 12, 1881. The plaintiff's cause of action is stated in his petition as follows:
“That the plaintiff was, on the twelfth day of November, 1881, and had been for a long time prior thereto, in the employment of said defendant as a