To a judgment for one of the defendants, E. M. Tanner, rendered on a verdict directed in his favor, in an action of
Plaintiff, Alphonso Eggleston, operated an automobile in the city of Bluefield and carried passengers for hire. On the 28th of June, 1919, he carried some passengers from Bluefield, W. Va. to Pocahontas, Va. and return. On the return trip one of the party, Ballard Campbell, was struck on the _ head with a rock and had one of his fingers cut off, and at his request plaintiff took him to a doctor to have his wound dressed. There were two car loads in the party, and this injury occurred on the return trip early on the morning of the following day, in the front car, driven by a man named Robinson, who, at the time, had stopped his car and was out on the ground fixing his lights. When plaintiff came up where the front car had stopped, Campbell asked him to rush him to a doctor, and he took him in the car he was driving and carried him to Dr. Tanner’s house, in the town of Simmons, a short distance from the place where the injury occurred. Doctor Tanner got in the car with them and they drove to his office, and Campbell’s wound was dressed. When plaintiff had delivered Campbell to the doctor’s office, he went to a gasoline station to get some gasoline, according to his testimony and left instructions for the driver of the other car to come by the doctor’s office and pick up Campbell. In the meantime Campbell’s wound was dressed and the doctor’s bill not being paid, he told Campbell he would hold the car until it was paid, and immediately sent a boy to notify Oscar Bennett, supposed to be' an officer. The car driven by Robinson had then been driven up and stopped at the doctor’s office and plaintiff had not then returned from the gasoline station. Campbell remarked that the car was not his, that he had nothing to do with it, and says the doctor then asked where the man was who brought him to him, and said he had promised to pay him-. Oscar Bennett, who had then appeared upon the scene, said he would hold the car until the doctor’s bill was paid. Some one of the party then told plaintiff they were holding his car until Doctor Tanner’s bill was paid. He then went to Oscar Bennett and asked him what authority he had for holding his car, and asked him to show him his authority, and he swears Bennett
The two Bennetts and Dr. -Tanner were joined as defendants in the action. At the conclusion of plaintiff’s evidence, on motion of Dr. Tanner’s counsel, the court excluded the evidence as to him and directed the jury to return a verdict in his favor. This is the error complained of. Plaintiff then took a nonsuit as to the other two defendants. There was no evidence offered by the defendants. The evidence tends to show that Dr. Tanner was the principal and Oscar Bennett his agent in the commission of the wrong. While there is no direct evidence that he counseled or advised the commission of the assault, he told witness Campbell that he woud hold the car until his bill was paid, and immediately sent for Oscar Bennett, presumably, for that purpose. He thereby made Bennett his agent for the purpose of doing what he told Campbell he would do, i. e., hold the car, and is liable for what his agent did in discharging what he had sent for him to do. According to the testimony of plaintiff and his witnesses which is all the evidence offered, Bennett’s acts in holding the car, and in arresting plaintiff and carrying him before the justice, were unlawful and without authority, and being done at the instance of D'r. Tanner, as the jury could well infer from the circumstances proven, he would be liable therefor as principal. That a principal is liable for the
We reverse the judgment and remand the cause for a new trial.
Reversed and remanded.