Till Bros. v. Redus

79 Miss. 125 | Miss. | 1901

Terral, J.,

delivered the opinion of the court.

Louis and Charles Till, under the name of Till Brothers, operated a store in Claiborne county, and, near by, Louis Till operated a gin. One of the laborers at the gin got caught in the saws of the gin and was badly lacerated thereby, so that amputation of his arm became necessary. There were a good many people at the gin and at neighboring places of employment, and, the fearful accident becoming speedily known, a large crowd gathered at the gin where the accident occurred, and there was great excitement among them. Dr. Bedus, who had surgical instruments, was sent for, and amputated the arm of the laborer and treated him for some time, when he sued Till Brothers for $130, and recovered a verdict for $75, and judgment from which Till Brothers appeal.

Their contention is that they did not employ Bedus. On the part of Bedus, as to his employment, "a witness (Mr. Magruder) testified that he came to the gin immediately after the accident, and during the excitement arising from the.accident, and, understanding that Dr. Bedus was telephoned for, but that doubt was expressed whether he would come at the request of the person sent with the message, he (Magruder) asked Louis Till if he should telephone for Bedus, and he replied, he wished he would; that, immediately, Charles Till came up and expressed an unwillingness to have Bedus come, which Magruder hearing, he turned to them and asked again, “ Who must I tell Bedus has sent for him ? ’ ’ and £ £ both Mr. Louis and Charles Till says, ‘Till Brothers; ’ ” upon which, he telephoned Bedus that Till Brothers wanted him to attend the wounded man.

We think the evidence of Magruder offered a sufficient foundation for placing the claim of Bedus before the jury, and that it supports a verdict in his behalf.

In Claiborne county a term of court may last three weeks, and the case was put to the jury on Monday of the first week, and was ready for submission to the jury at the close of the day, when, 1 £ by agreement of counsel on both sides, it was ordered that the clerk receive a sealed verdict, ’ ’ and the court adjourned. The jury returned a sealed verdict to the clerk and dispersed, and, by reason of the sickness of the judge, immediately ensuing, court did not reconvene until the third week of the term, when the court directed a judgment to be entered upon the sealed verdict delivered to the clerk on the night of the first day of the term; and this action of the court is also alleged for error. In Pierce v. Hasbrouck, 49 Ill., 27, it is said: “The parties having agreed that the sealed verdict should be delivered to the clerk, and the jury separate, such delivery was substantially the same thing as its delivery in open court.”

The consent of the parties justified, we think, the action of the court. £ ‘ Consensus tollit errorem. ’ ’

Affirmed.