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Action for damages. Before Judge Pharr. Fulton Superior Court. August 13,1953.
1. The amendment to the petition did not materially alter the cause of action and did not change the issue raised by the general demurrer to the original petition; therefore a renewal of the general demurrer was not necessary.
2. The plaintiff assumed the risk of his voluntary undertaking, under the allegations in the case, and is barred as a matter of law from recovering damages for injuries sustained in the execution of such undertaking.
Joseph LaHoste sued Yaarab Mounted Patrol, Incorporated, for damages allegedly due to the defendant's negligence. The petition alleged substantially: that the plaintiff was a member of the Jerusalem Temple Ancient Arabic Order Nobles of the Mystic Shrine, Oasis of New Orleans; that on September 6, 1950, the plaintiff, as a member of such organization, was assigned on a reception committee to greet the members of the Yaarab Mounted Patrol who were to arrive in New Orleans from Atlanta with certain parade horses to participate in a parade to be held in New Orleans on the day following; that it was the plaintiff's duty as a member of the committee to lead the group of the Yaarab Mounted Patrol from the unloading platform of the L & N Railroad station to the fair grounds in New Orleans, in an automobile with another member of the committee; that the horses were saddled by the defendant under the direction of Captain Dudley C. Fort, who was in charge of the patrol, and that as the procession was about to leave the unloading platform to proceed to the fair grounds, where the horses were to be quartered, the plaintiff returned to the automobile being driven by another member of the reception committee for the purpose of leading the way to the fair grounds; that, as the plaintiff was about to enter the automobile and guide the procession, Dudley C. Fort called to him and directed him to ride one of the horses in the procession, as there were more horses than riders; that Fort pointed out to the plaintiff a specific horse that he was to mount; that immediately upon mounting the horse, it started to rear up and stand on its hind legs, whereupon the plaintiff prepared to dismount as soon as he could quiet the animal, but before the plaintiff could dismount he was assured by Fort that there was nothing wrong with the horse; that the plaintiff relied upon the representations of Fort despite the behavior of the horse, and, upon the second assurance by Fort that the horse was not dangerous, the plaintiff lifted the reins gently in an effort to follow the procession; that, immediately upon doing so, the horse violently and uncontrollably raised upon its rear legs and fell completely backward while the plaintiff was still in the saddle, falling upon the plaintiff's chest and stomach; that the heavy weight of the horse remained on the plaintiff's body for a period of several minutes while the horse struggled to regain its feet and until bystanders were able to remove the horse from the plaintiff; that the plaintiff was injured in enumerated particulars; that Dudley C. Fort was the captain of the patrol and in charge at the time of the above mentioned occurrence; that at the time Fort was the agent and servant of the defendant, and was acting within the scope of his duties as captain of the patrol; that the defendant and Fort knew the horse was nervous, high-strung, temperamental, wild and uncontrollable, and liable to buck suddenly and rear up and attempt to throw or fall back with anyone who attempted to ride it; that the defendant and Fort also knew that the animal had been hauled from Atlanta to New Orleans by railroad, together with other horses in close quarters; that the defendant and Fort knew also that the animal should be rested before riding, after being transported in the manner alleged, so that it could be quieted from the nervousness and excitement incident to such transportation; that, nevertheless, the defendant, knowing these things, through Fort directed the plaintiff to mount the horse; that the defendant by and
through its agent and servant, Fort, was negligent in the following particulars: in transporting large, heavy and sensitive animals, to wit, horses, including the horse which threw the plaintiff, on a long, tiresome journey in close, closed quarters in a standing position in a railroad car for a long period of time without taking proper precaution to allow the animals to stretch and rest, and particularly in not allowing them to properly stretch, rest, and flex their muscles at the end of the journey; in requesting the plaintiff to ride the horse which they knew or should have known had just arrived in the aforedescribed cramped quarters and at a time when they knew or should have known that the animal was naturally very tired, nervous, and irritable; in delivering the horse to the plaintiff and requesting him to ride the horse without in any way warning him that the horse was tired, upset, and likely to be in an irascible and uncontrollable condition due to its long journey under the aforesaid conditions; in allowing the plaintiff to mount the horse without properly giving the horse an opportunity to exercise its muscles and to calm itself for a reasonable period of time; in failing to warn the plaintiff that the horse was a nervous, sensitive, high-strung, and temperamental animal, but, on the contrary, assuring the plaintiff that there was nothing wrong with the horse, when the defendant knew or should have known that the horse was not a proper one to be ridden, particularly at this time and under these circumstances; in using an improper bridle and bit on the horse and particularly one which when it touched the horse's mouth was very likely to make him rear up; in improperly saddling the horse by tightening his girth to such an extent that the animal was unable to walk or to carry a load without pain and discomfort and was likely to rear up and attempt to throw any rider who wanted him to move; in requesting the plaintiff to ride the horse, although the defendant knew or should have known that the horse was shod with improper shoes for walking on pavement; in requesting the plaintiff, who was a strange rider to the horse, to mount and ride the horse, when the defendant knew or should have known that the horse would violently react to a strange and unaccustomed rider attempting to ride him; in failing to water and feed the horse before having him ridden, although the defendant knew or should have known that it was hungry and irritable and in this condition would be likely to be mean and uncontrollable if attempted to be ridden; in failing to check and examine the horse properly to determine his physical condition and his willingness to be mounted and ridden by the plaintiff.
The defendant demurred generally to the petition. The plaintiff then amended his petition as follows: "The Louisiana law upon which this cause of action is brought is Articles 2315, 2316, and 2321 of the Civil Code, which are as follows:
"Article 2315--Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the children, including adopted children and children given in adoption, or spouse of the deceased, or either of them, and in default of these in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving blood brothers and sisters, or either of them, for the space of one year from the death. However, should the deceased leave a surviving spouse, together with minor children, the right of action shall accrue to both the surviving spouse and the minor children. The right of action shall accrue to the major children only in those cases where there is no surviving spouse or minor child or children.
"If the above right of action exists in favor of an adopted person, it shall surviving [sic] in case of death in favor of the children or spouse of the deceased, or either of them, and in default of these in favor of the surviving adoptive parents, or either of them, for the space of one year from the death. However, this right of action shall survive in favor of the blood parent or parents to the exclusion of the adoptive parent or parents when at the time of the adoption the adopted was a major, or emancipated minor whose adoption was effective without the consent of the blood parent or parents evidenced in the act of adoption. In default of these, it shall survive in favor of the surviving blood brothers and sisters of the adopted person, or either of them, for the space of one year from the death.
"The survivors above mentioned may also recover the damages sustained by them by the death of the parent of child or husband or wife or brothers or sisters or adoptive parent or parents, or adopted person, as the case may be."
"Article 2316--Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill."
"Article 2321--The owner of an animal is answerable for the damage he has caused; but if the animal had been lost, or had strayed more than a day, he may discharge himself from this responsibility, by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done, without being allowed to make the abandonment."
The court sustained the general demurrer to the petition and dismissed the action, and the plaintiff excepts.
1. The amendment to the petition setting forth the law of the State of Louisiana did not require a renewal of the general demurrer to the petition. An immaterial amendment does not open the petition anew to demurrer. Code 81-1312; Pritchett v. Ellis, 201 Ga. 809 (41 S. E. 2d 402); Central of Ga. Ry. Co. v. Waldo, 6 Ga. App. 840 (65 S. E. 1098). The pleaded law of Louisiana as to the liability for the conduct charged is in effect the same as that of Georgia. Since no Louisiana law with reference to the contributory negligence of the plaintiff or to his assumption of the risks involved is pleaded, it will be assumed that the law of that State in such respect is the same as ours. The amendment was immaterial because it was only an amplification and an aid to the original petition. Where a petition is amended by setting up foreign statutes which only amplify and aid the right already claimed in the original petition, the amendment does not materially change the cause of action. Missouri State Life Ins. Co. v. Lovelace, 1 Ga. App. 446 (58 S. E. 93). Also, the amendment did not alter or change the mode and nature of the defense available to the defendant as to the allegations of the original petition. In this connection see Quillian v. Johnson, 122 Ga. 49 (49 S. E. 801); Southern Bell Tel. Co. v. Parker, 119 Ga. 721 (47 S. E. 194); Kelly v. Strouse, 116 Ga. 872 (43 S. E. 280); Gibson v. Thornton, 107 Ga. 545 (33 S. E. 895).
2. A construction of the petition against the pleader on demurrer requires the conclusion that the plaintiff was merely requested to ride the horse. He was not an employee and was under no compulsion whatever, assuming that would have made a difference. There was no demurrer to the petition on the ground that inconsistent causes allegedly caused the injuries. However that may be, we think that under the circumstances alleged the plaintiff was put on notice by the conduct of the horse that it might reasonably be expected to repeat the act of rearing up, whatever the cause might originally have been among the many alleged. The assurances by the person in charge of the horses were merely a matter of opinion, under the circumstances, and were relied on by the plaintiff at his peril. Without burdening the record with citations, the liability of owners and furnishers of animals has many times been based on a single manifestation of wildness or vicious propensity as notice to the owner or person furnishing the animal. If a single manifestation is sufficient to establish liability on the one hand, it seems reasonable that notice of such a fact by the one using the animal would defeat a recovery, especially where he is a volunteer, as in this case. We do not base our conclusion in this case upon the proposition that the plaintiff should have anticipated that the horse would rear up simply because it was a horse, any more than a nurse should anticipate that a child will bite (Johnson v. Butterworth, La. App., 1934, 152 So. 166); but base it on the proposition that, if a horse rears up once, or a baby bites its nurse once, the same thing might be expected again, especially in a short period of time when conditions and circumstances remain the same as when the first rearing up or baby's biting occurred. In this case, the plaintiff was a volunteer and had notice that the horse might reasonably rear up on its hind legs. He assumed the risk of his voluntary undertaking under the allegations in this case, and is barred from recovery as a matter of law. Graham v. Walsh, 14 Ga. App. 287 (80 S. E. 693); Cooper v. Portner Brewing Co., 112 Ga. 894 (1) (38 S. E. 91); Artificial Ice & Cold Storage Co. v. Martin, 102 Ind. App. 74 (198 N. E. 446).
The court did not err in sustaining the general demurrer to the petition and in dismissing the action.
Gaines, Simpson & Peabody, contra.
Fraser & Shelfer, for plaintiff in error.
Saturday May 23 04:17 EDT

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