*1 1176 Friend, Clyde Joseph By H. His Next Clayton,
Leslie Clayton, Appellant, v. Rufus Wells, Jr. Clyde Joseph By Clayton,
Leslie Clayton, Friend, H. His Next Hydraulic-Press Rupus v. Appellant, Brick Company, (2d) Wells, Jr. 26 S. 969. W. April 7, Two,
Division 1930. *2 Hydraulic-Press Com- Eliot, Blayney appellant, & Brick Beclal *3 pany. Murry respondent.
N. for' Edwards *5 Angert L. Aronson for Jones, c& and Robert re- Sootier, Sullivan spondent, Wells. the Circuit Court COOLEY, C. This Avasinstituted action Hydraulic-Press City against defendants, Louis St. two Jr., recover Wells, Rufus Company, corporation, Brick Clyde injuries
damages by plaintiff, Leslie personal for sustained injured Clayton, years and sues aaIio Avlien seventeen old defendant jury a verdict for next friend. On trial returned plaintiff against for defendant Wells, *6 1182 $4,000 of required the plaintiff to remit
$20,000. The trial court being done entered company upon that against the brick verdict and against $16,000, and against for judgment defendant appealed from the Plaintiff favor of defendant Wells. plaintiff in Wells, appeal is docketed judgment- against him in favor which company appealed from brick 28444. here as case No. Defendant 28445 this No. in against appeal is case judgment and the separate here as Although were docketed appeals the two court. argued together and will they and eases, abstracted, briefed were disposed opinion. be of in one manufacturing in brick engaged brick Defendant was pur- manufacturing clay which for its clay fields from
and owned Malcom, at procured. Missouri, and poses was One was of these in which plant large a shed it stored the had clay during the winter season. during the summer and fall for use dump clay driving a plaintiff, while was in this shed that It rectangular injured. was wagon shed clay, loaded with was The 250) by pillars being supported square, in the roof shape, feet running and south and ease placed north so formed rows throughout apart way, shed. There west, twenty and each the feet pillars running resting tops each row of cross-beams on the were . roof. The west, east and above and near which cross-beams the height pillars from the normal floor of the shed to cross- thirty sides, was inclosed all but beams about feet. shed on openings in walls. One of these was on the there were certain being shed, west side near the corner of the another on southwest openings side near the northwest corner. These two were west twenty eight height twenty- each and about seven to about feet removing five feet wide. was a track for use There railroad clay, through stored which track ran north and south the extreme were, part openings shed, east there the north operation permit engine south walls to and cars on said track. by There was evidence four defendant there were “window openings” light through penetrate side. on east No could there, roof, light no artificial the shed. Plaintiff’s evi- company’s dence from also tended show smoke the brick which engine, hung entered the shed daily, collected and about adding obscurity roof and shed, timbers of the to the therein. dump filling shed, clay wagons In was hauled into it in called by until wagons, mules, drawn horses or the shed was nearly filled as wagon top possible. dump The driver procured oE clay clay driving load in the field near the shed beside a dug clay which dropped tractor-drawn machine into wagon along. The driver it moved would then drive into the wagons dump clay, being equipped dump- shed and with a
118b operated lever wagon. tlie driver from seat At the August injury, partly 1925, the shed been filled, so that elay driving the surface of the over which he was injured when tops was near the cross-beams and above the *7 openings question above pur- mentioned. the At in course the by plaintiff sued and other drivers was enter the shed with to their wagons through loaded openings the corner, at southwest drive the east about 150 feet, part shed, then north the north of the and to then clay westward to point being dumped, the where the was then leav- ing through opening shed the the at northwest corner. There the was in employee the shed all at an of brick company times the dumper called a who directed dump the drivers where to their loads and clay who leveled the after dumped. a load had been day question plaintiff
On the in and the other been drivers had following the route above until outlined about eleven o’clock a. m., entering when plaintiff, after a clay, the shed with load of was di- by superintendent rected one Pollard, company’s the who charge was plant, in the space of in to turn and drive north the pillars space between rows of pre- next the in which he had west of driving viously north*; been this, because had workmen been load- ing clay into cars on track the the east shed and their approaching space through wagons excavations were the which the going had Obeying been north. order, plaintiff Pollard’s turned north space driving into the in indicated and while northward space wagon caught that was between the and a cross-beam and injured. severely happened: lie thus described what guess I I north; T “Well, started had driven about a hundred or fifty a I there, in feet, hundred and and it was dark couldn’t see very hanging hanging well. had was around, There been smoke it building top in the on ground, around and bottom the got got rough; I and when I a little further down a little couldn’t by wagon I rough, see it was way that but could tell went rough, just go place it was I and as a started to under caught cross-beams, hames the mules on on that run the one wagon I forward, anything, and jump didn’t have time do or T straight I I up but saw go along, couldn’t sit and so ducked and right along, caught right and neck, went back me (indicating) squashed here drug down, up, me me doubled me.” light He only further testified that he see in the dim about could heads; as clay far as the mules’ how not see close the was to could the cross-beams and could not see ahead so to tell whether the clay piles; was level was or could not see that there a rise in clay caught under cross-beams but could tell him, wagon there up was because the “raised down.” The and went team; catching stop the hames on did the cross-beam not “just got caught gave jerk,.and He then let loose.” had necessary stoop over wlien previously to “duck” or found it
not cross-beams; always ridden the seat of passing under had only position. from wagon; dump-lever operated could be testimony except corroborating testimony There was given Pollard. the order alleges contractor, petition was Plaintiff’s Wells with working arrangement with his co-defendant contract and hauling clay shed, and into the said co-defendant in injured defendants, while and was employee was an and servant of working de- “in the as a servant of as a driver line of his duties were grounds negligence specified substance: fendants.” The work, reasonably place to furnish a safe failure of defendants to ivas clay plaintiff had to drive surface over which that! the clay piles which he had rough uneven were over and there surface, sufficiently drive,'and lighted, place and the not cross-beams; failure to drive was too to the over which he close do; light required work sufficient furnish permitted filled the shed become with smoke defendants *8 driving therein; while could not see defendants so that plaintiff to drive while negligently ordered and directed seated wagon through space they where under crosft-beams knew or so; reasonably safe for him known it was to do should have not danger they failed to him of the to be when incurred wa/rn danger.' such they known knew or should have general with a separately, each denial and Defendants answered contributory company plead- defendant brick plea negligence, deny- ing replied, assumed the risk. Plaintiff further that ing affirmative defenses. Upon prospective jurors,
T. voir dire tlm examination of (out hearing jurors) admitted defendant Wells being liability that his carried insurance and defense conducted company pursuant by policy. the insurance his insurance Plain- to permitted question, tiff’s counsel was to then the talesmen as to they whether were interested in that insurance examined, company. After bad been thus company for counsel the brick asked leave state to questions jury put bring or would our company the fact brick in- carried no request surance, which was denied. That action of urged by appellant company the court is brick question adversely presented error. appellant’s decided Appeals Louis contention St. Court in Malone v. Small, approvingly by 293 S. ivas 163, W. which decision cited Division 443, v. Star 323 Mo. 19 Co., One this court in Smith Cab S. W. (2d) is said: 469, wherein it 467, Company carried no insurance is of Star Cab. “The fact right qualify be denied the consequence. cannot Plaintiff
no reason; and, if a defendant with- this panel for the members Citing remedy.” he is without prejudiced thereby, is out insurance Small, supra. Malone v. appellant brick say record before us that from the We cannot Plain- requested. privilege company prejudiced denial Avas jurors the circum- right qualify the as he. did under tiff had is denied. contention This stances. paid by appellant Wells, defendant Avashired and
II. Plaintiff independent strongly Wells Avasan con- company insists that brick plaintiff Avas his servant and not the and that tractor company, court brick AA'herefore the servant for the latter. a verdict should have directed employment, Wells and the Prior to 11, 1924, which contract, dated October into a written entered company in to the brick Wells should furnish provided: That clay hauling, thirty suitable for spring of teams arid drive'rs company’s hauling clay such of the brick for used AvhichAA-ereto be County might Louis and St. Louis plants and around St. furnishing teams privilege of additional designate; liaArethe Wells to clay company’s requirements for up the limit of the and drivers company’s use of its not to limit the privilege such hauling, but Wells; require obligate additional teams from it to teams nor oavu day’s performing a capable of furnished should be that all teams competent non-union clay hauling and all drivers to be Avork ‘‘ every clay load of which pay AA-ould Wells men; that the (brick party’s gather his teams and deliver into second may Avith he designating folloAving storage rates, etc., sheds at the company’s) *9 providing as the rates places, different and that prices per load at. wages paid for common labor rate of based on the current were proportion in should raised or lowered by company rates be the the. prevailing Avage company’s scale at the or of increase decrease to were, if prior beginning new fields Avork that plants 1925; to used,” Yates company “or methods the AA-ere opened by different the same, adjusted approximately have the a team Avould to be so that day average fixed; employed in earning rates “teams power as the mules and a for at the rate of for tAAro paid Avorkshall be $8.50 driver, mule;” payments for that each additional and extra $2.50 retaining per- company Aveekly, the ten Wells should be made due of contract AA-hen Avas amount due until termination balance to cent complied with if “shall have the terms of this con- paid be Wells he agreed continuously provided the aforesaid shall have tract and days hauling clay for on all and drivers on which number of teams party (brick gather clay” (italics company) second- has been able to agreed ours); provide if Wells failed to the that number of teams ariy clay-working days two company and drivers for consecutive the might per terminate the contract and retain the said ten cent' of liquidated damages; days sums theretofore earned that when might clay hauling company no there be the would endeavor provide teams; employed work for if the Wells’s teams were hauling payments company’s in brick would be made at the es- rates; 1, tablished terminate contract to October or when company’s prior if date, sheds were filled to that or unless the by should not be October 1, sheds filled in which be event it could any company option. 1 by terminated time after October at its summary foregoing is full a contract. It will be seen provisions no it contains to the gathering relative manner of storing clay, any or is gathering there reference to nor Wells’s clay except fixing part compensation of the contract on the per clay gathered with his basis load of teams and delivered into sec- storage Considering party’s provisions ond sheds. all its appears to have furnish been intended as contract teams and drivers gather clay. than _ any rather one to and store And in event it provision clay placed makes no for the manner which the is to be or stored in sheds. brick company plant, clay
Defendant including owned engine and shed, track, field the switch and thereon, cars used excavators, wagons, machinery equip- and all of the tractors and carrying on work, apparently used in ment and some teams clay hauling. only used Defendant Wells owned the teams by him perhaps furnished their brick company’s harness. The plant all superintendent, Pollard, at the Plain- time. shows supervision tiff’s evidence that Pollard exercised and con- plant. trol of also shows Pollard It at different times including employees, directed drivers furnished Wells, telling do, obeyed them what There field boss in him.. charge operations clay directed desig- and who field and dug. clay where should be an employee nated IIe was brick company and under Pollard’s control and direction. Sometimes gave Pollard himself orders get to -where to clay, drive, up clay or take where to the excavator and load that had spilled wagons; “get been out other road, out of the things loading apparatus'was like that.” The tractor operated employees brick under direction of its field boss. In dumper, employee the shed the an and under Polla'rd’s directed authority, drivers -where to dump clay. apparent It is the movements of the drivers inside the shed *10 solely by company’s agents. were directed the brick According to Pollard’s own testimony, by offered the brick company, directed, he the field boss get where to have the men clay and directed the dumper where to have placed in the shed. Tie testified: “Q. you supervise So getting work oE clay out of the field, you? don’t A. Yes, sir. “Q- you supervise And they where shall take put clay clay into the shed, you supervise and then they where dump it, you? don’t A. Sure.” (removal supervised He also and directed clay of in the shed. At the- time of plaintiff’s injury it was Pollard who ordered him to change his route and directed him what course to take.
It appear does not that Wells directed his drivers as to the manner performing except their work that he them to cautioned safety. clay look out for their He instructed them' put Hydraulic “where the it,” folks wanted to be place but sure the satisfactory standpoint my “I safety. from the men told disobey Hydraulic-Press Company the orders of the Brick men danger they thought any out there to this if there was extent that their or judgment, should use own whether it was the boss anybody regardless what else, to take care of themselves first anybody says.” paid plaintiff is conclusive
The fact that Wells hired and not independent an contractor and that that Wells doing wheu he was performance of the work his in the servant independent contractor injured. determining is an whether one In considered, may be circumstances agent various servant, or or an existence of business, his independent nature as the such agree- work, piece of specific of a performance for the contract employment of assist- work, the price for fixed pay a ment to materials, furnishing of tools and control, the his are under ants who except as to progress work while right control his doing is the work the mode of as to right control results. determing the principal consideration generally held to be (Mo.), Milling Company County v. Scott relationship. Baker [See authorities (2d) 494, and cited.] 20 W. S. per- is a great weight authority, according to the servant, “A respect employer with control of subject; to the is son who performed.” be work are to details which the manner in 252 S. W. (Mo.), Veterinary Laboratories Joseph v. St. [Lawhon 44, 48.] ambiguous or cjuestion indefinite is the contract Where and details of manner control the right to reservation themselves, parties upon put interpretation work, determining may be looked to thereunder, conduct shown their acted understood and meaning. If and the Wells its *11 1188 contract,
upon leaving right, doing to direct the method of company work in the brick and the latter did in fact exercise right such against it cannot plaintiff now assert as that he was not its doing servant the work he. was unddr its direction. [Baker v. County Milling Company, Scott supra; Porter v. Withers Estate 27; 201 Company, App. Mo. Joseph Lawhon v. Laboratories, St. etc. supra.]
We ample think there was justify evidence to submission to the jury question plaintiff of whether or not occupied the re- lationship of servant to defendant brick in the work he was doing injured. when cited, paragraph; he was above this [Cases also Brick Co., 645; Diehl v. Green 299 641, Fire Mo. v. Simmons 234 S. Murray, 1009, eases; Holloway W. and v. 294 Mo. Schield, 512, 243 163;W. Donk S. Maher v. Bros. & (Mo.), Coal Coke Co. (2d) 20 S. W. 888, and eases cited.] Appellant
III. contends that under the evidence plaintiff clearly guilty contributory negligence was and that the should have appellant court directed a verdict for said on that (cid:127) ground. argument proceeds upon The theory plaintiff that shed, was familiar with conditions in the knew the location of warning cross-beams, had from the movement of the
wagon place lief ore he reached where he was in jured ground rough- uneven; ivas and when the hames the cross-beam struck he had notice that was it too pass under, team; low for him but to made no effort to check the and if it was so dark that he couldn’t see ahead of his team was it blindly negligence him “drive down to an untried aisle where to knowledge danger stringers present every the overhead twenty argument contrary much feet.” assumes is to reasonable evidence and inferences drawn to be there appellant’s fact superintendent from and overlooks the that said ordered him drive down the “untried aisle.” to It ivas to untried through driving as he had not been it theretofore. But it duty giving was Pollard’s know before to that order obey riding reasonably it, safe for to on the seat of the wagon do, point as he was accustomed to from which alone he must, operate dump lever, and could where Pollard have ex wairning pected ride, so, to he would continue absent not to do given. right rely which was Plaintiff had a Pollard’s not superior knowledge to assume that the order would and not have obey given reasonably for him been unless ivas safe it. [See 288 Hydraulic-Press Brick S. W. Company, 941, Brann v. (2d) 5 Ingram Block S. cited; (Mo.), cases v. Prairie Coal Co. W. compelled Plaintiff been eases had not 415, cited.] stoop avoid other reaching cross-beams in that aisle before against caught. one which he was He did know not and could not clay immediately see that piled had been under the one which caught him space so that there less there than beneath others passed. under which he caught "When jerked the hames according loose, wagon to his testimony, the ran forward and he was caught injured stop before he had the team do or anything escape injury. clearly opinion ¥e are *12 plaintiff guilty contributory negligence was not shown to have been as a appellant’s ground matter of law and on demurrer that was properly overruled.
IY. Appellant brick company complains of certain instructions. Instructions No. 1 and No. 3 are assailed being as broader than the pleadings, therefore erroneous. These instructions long are and we shall not burden this opinion by setting them out. Instruction 1 Number recovery against authorized appellant brick
company if jury plaintiff the found the ivas at injury working his as a servant said brick and injured by negligent appellant the failure of said to furnish reasonably place him a work, setting safe in which to out the facts necessary theory. be pointed to found on that It is not out and allegations we are unable wherein to see is broader than the petition. predicated negligent the Instruction No. 3 is on the giving plaintiff of the order to he to drive where did. It is con- tended appellant neg- that thei contains instruction the element that ligently plaintiff directed and caused to drive while seated on the dump wagon. customary way driving. That The seat on wagon provided driving ivas driver’s use in and for the he in operate dump Pollard, be the seat in to lever. order giving order, could have and been understood mean meant nothing way. plaintiff customary else than that should in the drive
A 3 further criticism of Instruction is it does not confine finding negligence petition, jury specified and its to the by Reading instruction and shown evidence. as a whole jury with Instruction we are satisfied was not connection necessity given roving a doubt ot commission nor left in finding pleaded. facts as and as shown evidence Complaint appellant is made brick also instruc- only 5 7 The instructions numbered are in conflict. tions given 5 7 re- numbered that we find in the were at the record sub- appellant relate to of this different finest argument In- we assume printed its jects. From 13 given No. 7. Number is instead 13 meant struction found, would defining if facts, what "Wells request defendant 1.190
constitute company. a servant Appellant of the brick brick company’s found, jury facts, Instruction tells the what if would independent constitute Wells an contractor and They servant. substantially are counterparts If of each other. there is error in company’s either is in the brick own Instruction. 5 and it cannot complain of conflict thus created.
Complaint is made give of the court’s refusal an instruction withdrawing jury from the allegations consideration of the rel- presence ative of smoke in there, the. If shed. smoke was plaintiff’s show, evidence tended light would affect ability to see. That properly instruction was re- fused. There are other given criticisms of instructions and refused, but necessary
none wé deem to discuss view of what we have said in Paragraphs II and III. Appellant
Y. company’s final contention is that the amount judgment is very excessive. Plaintiff received severe and permanent injury surgeon spine. to his who treated him operated and later on him, Morse, injury Dr. described the aas *13 compressional fracture of A compres- the third lumbar vertebra. sional fracture is body which described as one in of the vertebra is “telescoped,” leaving in collapse it such condition that it will from weight body. wagon of the Plaintiff was off the taken unable to suffering walk and intensely. hospital He was taken to a where eight he remained put months. He was first in a Bradford frame him position which held in a fixed in and he remained that frame about three On months. November- three months after his injury, prevent becoming in “humpbacked,” order to his Dr. per- Morse operation taking piece -plaintiff’s an 'which formed consisted of of grafting spine. operation shin bone The and it into the w7assuc- spine plaintiff cessful in that healed so that w7assaved from necessarily becoming part but humpbacked, spine left grown1 ankylosed together. stiff, being three of the vertebrae The or graft top extended from the lower 'end of the first to the of the lumbar and six or seven inches of third vertebra about back the. plaintiff’s flexibility. back, opinion Morse, In of Dr. has no may strong get will never normal or become stronger, while it be requires able do labor as it was and will never be any surgeons stooping, lifting or extent. Other cor- exertion permanency Dr. roborated Morse as to the character and injury. again placed rigid in á operation plaintiff
After frame which or twelve weeks. When removed or he remained ten cast body plaster cast about his which he had to wear a from that he going hospital.- Soon after home ivore when he left still
1191 corset brace was substituted for plaster and cast, about three bandage months an later body. elastic was worn his He was about still compelled to wear the bandage April, trial, the time at 1927.
Plaintiff testified greatly he suffered time and while the hospital pain and strength still suffers back, from his little has but in his back, long cannot pain, sick and stand without and becomes dizzy attempts himself; when exert he times that at he is restless sleep pain nervous and long cannot and has if remains he one position. Dr. plaintiff’s Morse testified that the condition of hack pain might could cause him at the of the trial and cause dizziness if attempted he nervousness to exert himself. injury -plaintiff’s
Prior to his physical health and condition had good. been good He was bright, intelligent lad, shown to be a eighth habits, only grade with but an education. He lived a farm training and had no than His for other manual labor. earning power reaching majority undoubtedly after will have been impaired by suffering his he has injury, in addition endured consequent injury. probably will upon endure such an ‘Without reviewing the numerous decisions cited industrious counsel on this interfering point justified say is sufficient to that we not feel do n ground judgment with the on the it is excessive. appeal foregoing disposes VI. The of the of defendant judg- company. appeal It remains consider from ment in favor of defendant Wells. only assigned by appeal is error on his the refusal give requested giving F Instruction and the court to 12 11 and of defendant Wells.
instructions numbered on behalf Said contributory subject negligence 12 are on the Instructions concerning complaint are and the them is that broader than justified hypotheses pleading and submit evidence and They pleaded. contributory negligence not do submit issue not *14 contributory pleaded in in negligence language of in the which it is answer, present Wells’s hut we in substance and effect think prove. tended pleaded the issue and which defendant’s evidence to against finding plaintiff F for Refused Instruction authorized a jury injury plaintiff of was Wells his if the found that the time scope working employ- his as a of Wells and within the of servant negligently pro- men^ such and Wells that failed to light required him, him do the work vide sufficient to injury his was caused such failure of Wells that light provide light. only was the sufficient absence one of place plaintiff was hurt elements which combined make the where doing. By 2, for the work he was Instruction No. unsafe submitting Weils, the absence of sufficient tbe issues as to defendant upon finding light pleaded, Avasincluded other facts AA'ith which, jury Avasauthorized to facts, including light, the insufficient reasonably plaintiff a safe Avork- Wells not furnished find that find) against AYellsto plaintiff Wells if it found ing place and for negligent regard plaintiff injured in that and that have been thereby. pleadings Ave are inclined to think Under the. and eAodenee question sufficiently of lack this instruction submitted giA'e refusing light Instruction and that the court did not err in recovery ground light. authorizing F the sole insufficient Avrong opinion conclusion, if are in Aveare of the But we plaintiff position complain for another reason. While is in no petition alleged generally injured Avas plaintiff he his that AA'lien defendants,” requested “of he and obtained instructions servant theory submitting separately, each on the his case as to each defendant that) he injury doing, Avorkho AA'asthen at the time of his particular AArasthe a Plaintiff’s Instruction servant of defendant. jury general telling preliminary paragraph I contains injured duty plaintiff of a master to the time “at ordinary provide reasonably care to furnish and the servant exercise required his place the servant safe in Avhichto do the Avork jury finds proceeds state if the that at master.” It then working injury plaintiff a servant of defendant time of his as AA'as company scope employment brick and within of his as a servant place required company and that the where he was to work of said etc., reasonably company safe, brick as a of such AA'asnot servant though precisely hypothesizing the facts to be found the brick only finding defendant, then the should be for Avere against company. plaintiff brick
By 2, plaintiff his case as Instruction submitted to defendant way substantially language. In Wells same and in the same required against jury Avas to find that order to find Wells the at the plaintiff Avorking injury of his Wells AA'as a servant of scope employment Avithinthe as Wells’s of his servant and that the place required he. was to Avorkas Wells’s servant was not Avhere reasonably safe, etc. ’Wells,
By given Instruction AA'hich but does not question company’s appeal brief brick and AA'hichin his on the hq says instruction, jury is a is told in substance if correct right reserved the to control and Wells in direct control and him and performance the drivers, the work and d.id direct through agents its Avhere directed to drive dump clay, “plaintiff, pur- then and where to for the team Hydraulic-Press pose case, was a servant of the of this defendant Plaintiff, throughout fact, case insisted Company.” Brick *15 doing injured of performance in the the work he was when the that company between the brick of master servant existed relation company’s appeal himself. In his brief in the brick he takes position independent contractor, an the Wells was not there- doing injured, his work he birt not master in the Avas AAhen fore “nothing employee Hydraulic more nor less than an the Avorking piece-Avork for them a sort of commission or basis.” on jury instructions find Under the at time, working injury his Avas the servant the brick com- plaintiff against company. for brick And pany order find necessarily finding In this Avas a plain- did find. effect so Avorking hurt, he Avas not, tiff Avas at the servant proceed case did not and was Wells. Plaintiff’s not submitted injured by theory he AA’asthe servant Wells and Avas duty servant, him brick owed as Wells’s breach of a against sought recovery theory versa. He each on the nor vim duty his a master oavcs own servant. The de- breach of the two joint enterprise engaged in a such that fendants were not relationship injury plaintiff sustained the of servant to time of his general doing. particular he ivas While in a worh then both in jury servant, Avay may said to liaArebeen Wells’s he. be found company’s particular servant, there- Avorkhe was the in that of Wells. not the servant fore general employer employee is servant of one an
“The fact that prevent becoming laAV, par him from as a matter of not, does may Avho become liable for his acts. And another, ticular servant person general proposition that Avhenone lends a it is true as servant, for particular employment, another for servant employment, be dealt with as particular must anything done although lent, AA’homhe is he remains the servant of the man, R. sec. lent him.” C. L. person aa'Iio of the general [18 servant 580, Co., & 299 Mo. Karguth Bros. Coal Coke 784; v. Donk 244, p. Holloway Schield, supra, and cases 367; v. 253 W. cited.] S. upon which pleadings evidence and instructions Under the against the verdict submitted, we think the case Avas finding necessarily amounted of non- defendant brick any, in the instructions error, if Wells, so that liability of defendant would be immaterial. Wells given refused as to is Davis and Hen- affirmed. judgment as to both defendants wood, CO., concur. foregoing adopted is opinion by Cooley, C.,
PER CURIAM:—-The judges All of concur. court. opinion as the