73 P. 86 | Kan. | 1903
The opinion of the court was delivered by
A cart in which defendant in error was riding came into collision with a buggy occupied by Jphn W. Bagby, who was driving one horse to his
A witness on behalf of plaintiff below testified that in a conversation with Clark he stated that Bagby was his agent and foreman and looked after everything on the farm. This admission of the defendant was, of course, competent, but it fell short of showing that at the time the plaintiff was hurt Bagby was em: ployed in or about his employer’s business. To establish such fact, a witness named Henry was permitted to testify that he was present at the store of a Mr. Yardley while Bagby was buying staples and that he asked the latter what he was doing. He responded that he was working for Mr. Clark. The latter was not present at the time. The following question to
The-court in the instruction referred to narrowed' down the question to be considered by the jury, and brought it within the limits of the rule applicable in such cases. The mere fact that the agent, Bagby, was in the employ of Clark at the time of the injury did not make the latter responsible for the former’s negligence. To render a master liable it,must appear that the tortious acts of the -servant were done in the course of his employment in the former’s service. This the statement of Bagby tended to show. That such declarations were inadmissible admits of no doubt. , (Mo. Pac. Rly. Co. v. Johnson, 55 Kan. 344, 40 Pac. 641; Leu v. Mayer, 52 id. 419, 34 Pac. 969 Donaldson v. Everhart, 50 id. 718, 32 Pac. 405; Mo. Pac. Rly. Co. v. Stults, 31 id. 752, 3 Pac. 522 ; Coal Co. v. Dickson, 55 id. 62, 70, 39 Pac. 691.) Bagby testified that -what business -he transacted while in town on the day of the accident was personal to himself. If this was true, the witness himself, not his employer, was liable. (Hudson v. M. K. & T. Rly. Co., 16 Kan. 470.)
The rule is well illustrated in the case of Cousins v. Hannibal & St. Joseph R. R. Co., 66 Mo. 572. A person employed by a railway company as superintend-
We would prefer to affirm the judgment of the court below, if it could be done without violating a well-settled rule in the law of evidence, for we think there was ample proof of Bagby’s negligence, and the verdict of the jury exceedingly moderate in amount, considering the extent of plaintiff’s injuries.
The judgment of the court below will be reversed and a new trial granted.