Indiana Car Co. v. Parker , 1885 Ind. LEXIS 184 ( 1885 )

Elliott, J.

The complaint of the appellee alleges that he was employed by the appellant; that while engaged in the discharge of the duties of his employment, he received an injury, and that this injury was caused by the fault and negligence of the appellant in providing unsafe and defective machinery.

In a very able and elaborate brief, counsel for appellant argue that the appellee is not entitled to recover because the negligence which caused the injury was that of a fellow servant, the foreman of the shop in which the appellee was employed ; and that for such negligence the employer is not liable.

We concur with counsel in the statement of the general principle, that a foreman is a fellow servant of those working with him, and that for the foreman’s negligence in the discharge •of his duties as foreman, the master is not responsible to a fellow servant. The overwhelming weight of authority sustains this general doctrine, and our own court has been one .among its staunchest supporters, as a long line of decisions attest. Ohio, etc., R. R. Co. v. Tindall, 13 Ind. 366; Wilson v. Madison, etc., R. R. Co., 18 Ind. 226; Slattery v. Toledo, etc., R. R. Co., 23 Ind. 81; Ohio, etc., R. R. Co. v. Hammersley, 28 Ind. 371; Columbus, etc., R. W. Co. v. Arnold, 31 Ind. 174; Sullivan v. Toledo, etc., R. W. Co., 58 Ind. 26; Gormley v. Ohio, etc., R. W. Co., 72 Ind. 31; Robertson v. Terre Haute, etc., R. R. Co., 78 Ind. 77; Boyce v. Fitzpatrick, 80 Ind. 526; Drinkout v. Eagle Machine Works, 90 Ind. 423.

In a recent case, Railroad Co. v. Ross, 31 Alb. L. J. 61, the Supreme Court of the United States, by a divided court, four •of the judges dissenting, laid down a somewhat different doctrine, but, as said by a reviewer: “ It is probable that a doctrine approved by Chief Justice Shaw and uniformly followed by every State, except three or four, will hold its own :against a bare majority decision of the Federal court.” 31 Alb. L. J. 81.

In Columbus, etc., R. W. Co. v. Arnold, supra, the principle was applied to a case where the servant injured was a fireman on a locomotive, and the person guilty of negligence was ■a master mechanic. That case is an extreme one, and does, perhaps, carry the doctrine beyond its limits.

In Robertson v. Terre Haute, etc., R. R. Co., supra, the servant injured was a brakeman, and the agent guilty of negligence was a train' dispatcher; and in Drinkout v. Eagle Machine Works, supra, the servant who received the injury was •employed as a laborer in the shop of which the agent, guilty •of negligence, was a foreman.

In Brazil, etc., Coal Co. v. Cain, 98 Ind. 282, the principle was applied to the case of a “ bank boss ” in a coal mine, whose duties were the same as those of a foreman. We shall find abundant authority to the same effect outside of our own reports.

In Wilson v. Merry, 1 L. R., 1 Scotch & Divorce App. 326, it was held by the House of Lords that a servant employed as a miner could not recover against the owner of the mine for injuries caused by the negligence of the manager. Decisions involving similar principles will be found in Brown v. Accrington, etc., Co., 3 H. & C. 511; Wigmore v. Jay, 5 Exch. 352; Searle v. Lindsay, 11 C. B. N. S. 428; Howells v. Landore, etc., Co., L. R., 10 Q. B. 62 (11 Moak’s Eng. R. 153) Allen v. New Gas Co., L. R., 1 Exch. Div. 251.

In Albro v. Agawam, 6 Cush. 75, the agent guilty of negligence was the superintendent of a factory, and the servant-injured was a person employed in running one of the spinning machines, and it was held that the relation was that of' fellow servants. Northcoate v. Bachelder, 111 Mass. 322, and Zeigler v. Day, 123 Mass. 152, assert a like doctrine.

In the case of Hard v. Vermont, etc., R. R. Co., 32 Vt. 473, the injured servant was an engineer, and the person guilty of negligence a master mechanic in charge of the locomotives, and it was held that the principal could not be made answerable. Brown v. Winona, etc., R. R. Co., 27 Minn. 162, S. C., 38 Am. R. 285, decides that the relation of fellow servants exists although one is the overseer or foreman. It is, however, held in Iowa that the fact that the superior agent has charge of the subordinate ones does not change the relation from that of fellow servants, unless the superior has authority to hire and discharge subordinate servants. Peterson v. Whitebreast, etc., Co., 50 Iowa, 673; S. C., 32 Am. R. 143.

In Blake v. Maine Central R. R. Co., 70 Maine, 60, the remark of the judge in McAndrew v. Burn, 39 N. J. 115, S. C., 35 Am. R. 297, that “A fellow servant I take to be any one who serves and is controlled by the same master,” was approvingly quoted, and it was held that the principle applied, although one servant was subordinate to the other. The Su~ p'reme Court of Pennsylvania has held, in several cases, that the fact that one of the agents was a foreman having control of the other does not change the rule, and that they are, nevertheless, fellow servants of a common master. Lehigh Valley Coal Co. v. Jones, 86 Pa. St. 433; Delaware, etc., Canal Co. v. Carroll, 89 Pa. St. 374; Keystone, etc., Co. v. Newberry, 96 Pa. St. 246; S. C., 42 Am. R. 543. This is the doctrine of the Court of Appeals of New York. Wright v. New York Central R. R. Co., 25 N. Y. 562; Crispin v. Babbitt, 81 N. Y. 516; S. C., 37 Am. R. 521.

The cases relied on by the appellant do not conflict with the views expressed in the cases cited by us. Rogers v. Overton, 87 Ind. 410, was not an action against the master, but was an action by one fellow servant against another, and is, of course, no.t at all in point. Boyce v. Fitzpatrick, supra, affirms, in express terms, the general principle of the cases cited by us, but decides that the master is liable for a negligent failure to provide safe machinery. Indiana M’f’g Co. v. Millican, 87 Ind. 87, belongs to a class of cases essentially different from the present,- for it decides, what is not here immediately involved, that a master is responsible if he negligently employs an incompetent servant, and thus causes injury to another servant. The decision in Mitchell v. Robinson, 80 Ind. 281, directly-affirms the general doctrine as we have stated it in the early part of this opinion, but declares that where the agent stands in- the place of an absent master, the master is liable for his negligence in performing duties which the law requires of the master. There is, therefore, no conflict in our cases, and they have a full and firm support from the decisions of other courts.

The rules which these decisions so firmly establish as the law of this State may be thus stated:

First. The master is not liable to a servant for injuries resulting from the negligence of a fellow servant engaged in the same general line of duty, where the negligent act is performed in the capacity of servant.

Second. Servants engaged in the same general line of duty are fellow servants although one may be a superior, and the others may be subordinate servants, under’ his immediate direction and control.

The facts which it is necessary to consider in connection with the rules of law stated are' these : The appellant is a foreign corporation, with its chief officers and agents in another State; it owned and operated a ear manufactory at Cambridge City, in this State; this factory was under the general control and management of John McCrie; the wood shop in which the appellee was injured, and where he was employed, was under the immediate control of John Higginson, as foreman.

It is obvious that the rules of law will preclude the appellee from recovering upon the ground that the foreman, in the discharge of his duties as foreman,' was guilty of negligence. While Higginson was acting merely as foreman, and not discharging a duty owing by the master to its servants, he was the fellow servant of the appellee. The duties of his position as foreman did not make him anything more than a co-employee, with a’higher rank and greater authority than the appellee, and so long as he kept within the line of his duties as foreman, he was a fellow servant, serving a common master. If the negligence which caused the injury occurred while Higginson was engaged in the performance of the duties imposed upon him as an employee in the same general line of service with the appellee, the employer is not liable, because the liability to injury from the negligence of a fellow servant is one of the risks of the service which the servant assumes in entering upon it. The servant does not assume any risk arising from a breach of duty by the master,' but does assume the risk of a breach of duty by his co-servants. It is clear that counsel’s theory, that the appellee is entitled to recover on the ground that the foreman was guilty of negligence in the performance of his duty as foreman, can not be maintained, and if there is no other ground upon which the appellee can plant his right to a recovery, this appeal must be sustained.

It is the duty of the master to provide suitable and safe machinery, reasonably well adapted to perform the work to which it is devoted, without endangering the lives or limbs of those employed to operate it. The master is not bound to use the highest care, nor to secure the latest and most improved machinery, but he is bound to use care, skill and prudence in selecting and maintaining machinery and appliances, and for a negligent omission of this duty he is answerable to a servant injured by the omission. Umback v. Lake Shore, etc., R. W. Co., 83 Ind. 191, vide p. 193; Boyce v. Fitzpatrick, supra; Lake Shore, etc., R. W. Co. v. McCormick, 74 Ind. 440; Lawless v. Connecticut River R. R. Co., 136 Mass. 1; Trask v. California, etc., R. R. Co., 63 Cal. 96; Payne v. Reese, 100 Pa. St. 301; Hough v. Railway Co., 100 U. S. 213; Railroad Co. v. Fort, 17 Wall. 553; Ford v. Fitchburg R. R. Co., 110 Mass. 241; S. C., 14 Am. R. 598; Paterson v. Wallace, 1 Macq. 748; Corcoran v. Holbrook, 59 N. Y. 517; S. C., 17 Am. R. 369; Ellis v. New York, etc., R. R. Co., 95 N. Y. 546; Wilson v. Willimantic, etc., Co., 50 Conn. 433; S. C., 47 Am. R. 653, vide p. 655; Vosburgh v. Lake Shore, etc., R. W. Co., 94 N. Y. 374; S. C., 46 Am. R. 148; Wood Master and Servant, 686; 2 Thomp. Neg. 972; Whart. Neg., section 211.

The duty which the master owes to the servant is one which he can not rid himself of by casting it upon an agent, officer •or servant employed by him. The distinction between a negligent performance of duty by an agent or servant,, and the negligent omission of duty by the master himself, is an important one. Where the duty is one owing by the master, .and he entrusts its performance to an agent, the agent’s negligence is that of the master. As the master is charged with the imperative duty of providing safe and suitable appliances, this duty he must perform, and if he entrusts it to an agent, .•and the agent performs it in his place, the agent’s act is that of the master. In authorizing an agent to perform such an act, the principal is, in legal contemplation, himself acting when the agent acts, for he who acts by an agent acts by himself. This principle does not conflict with any of the general rules we have stated, for the agent assumes, by authority, the master’s place, and does what the law commands the master to do. He is for the occasion, and in the eyes of the law, the master. If it be true that the agent’s act is the master’s act, then it must be true that the negligence involved in the act. is that of the master himself. The rule which absolves the-master from liability for the negligence of the fellow servant-has no application whatever where the agent stands in the-master’s place. The reason of the rule fails, and where the-reason fails, so does the rule itself. The reasons which support the rule are that servants take the risks of the employment upon which they enter, and that jmblic policy requires. that fellow servants should “ each be an observer of the conduct of the other.” Farwell v. Boston, etc., R. R. Co., 4 Met. (Mass.) 49.

The first of these reasons completely fails when it is brought to mind that the servant does not assume the risk arising from unsafe and unsuitable machinery and appliances. The second as surely and completely fails when we affirm, as under all the authorities affirm we must, that the duty to provide safe appliances rests upon the master, and not on any servant, for, surely, servants are not bound to be observei’s. of the master’s conduct. It is, therefore, not at all difficult to clearly discriminate and broadly mark the difference between a case where it is the mastex’’s duty, as master, that is neglected, and a case where it is the fellow servant’s duty, as servant, that is negligently performed. A servant has a right, himself exercising ox’dinary care, to rely upon his master’s care and diligence. He is not bound to watch his master as-he is his fellow servant. The rights are reciprocal, the master has his duty as the servant has his. When the master’s duty is negligently done, he it is who is guilty of a breach of duty although he acted through the medium of an agent. If the master were permitted to escape his duty by shifting it to an agent, the practical result would be his entire absolution from the duty which the law imposes. The law will not permit this result, for it will not permit a duty to be evaded, but will require performance by the person upon whom it has fixed it. A different rule from that stated would, in such a case as this, wholly relieve the master from obligation to his servants, for here the foreign corporation acted by its agents, and none of its chief officers were ever at the factory in Cambridge City. If it can not be held responsible for the negligence of these agents in selecting, arranging and maintaining this machinery, the result will be that it is wholly absolved from its duty to its agents and servants.

It is clear upon principle that where the duty rests directly •on the master, and he authorizes an agent or servant to perform that duty, he is bound to answer to a servant injured by the negligent performance of the duty, nor are authorities wanting. In one of our text-books it is said: “ It is important at this point to remember that the master is liable where the negligence of the offending servant was as to a duty assumed by the master as to working place and machinery. A master, as we have already seen, is bound when employing a servant to provide for the servant a safe working place and machinery. It may be that the persons by whom out-buildings and machinery are constructed are servants of the common master, but this does not relieve him from his obligation to make buildings and machinery adequate for working use. Were it otherwise, the duty before us, one of the most important of those owed by capital to labor, could be evaded by the capitalist employing only his own servants in the construction of his buildings and machinery.” Wharton Neg., section 232.

In a thoughtful essay upon this general subject, Judge Cooley says: “Wehave seen that in some cases the master is charged with a duty to those serving him which he can not divest himself of by any .delegation to others. He is charged with such a duty as regards, the safety of his premises, the suitableness of the tools, implements, machinery or materials he procures or employs, and the servants he engages or makes use of. Whoever is permitted to exercise the master’s authority in respect to these matters is charged with the master’s duty, and the latter is responsible for a want of proper caution on the part of the agent, as for his own personal negligence.” 2 Southern Law Rev., N. S. 114, see page 123.

In Mullan v. Philadelphia, etc., Co., 78 Pa. St. 25, S. C., 21 Am. R. 2, the court said: “ In this case there was some evidence that the entire duty of providing the appliances for loading and unloading the vessels of the defendants, had been entrusted to the discretion of Corcoran. And just to the extent to which the proof wept in fixing upon him the responsibility for the selection of the rigging and for adjusting and working it, did the same proof tend to establish the fact contended for by the plaintiff, that Corcoran was clothed, as to these duties, with the ultimate power and authority of the defendants.” It was held in the case of Gunter v. Graniteville M’f’g Co., 18 S. C. 262, S. C., 44 Am. R. 573, that where a superintendent was employed to secure and keep the machinery of a factory in repair, and by his negligence in the performance of that duty caused an injury to a servant in the same general line of employment, the master was responsible. The court said: “ So, too, it is conceded to be the duty of the master to provide suitable machinery for the use of his operatives; and if he delegates this duty to another, he is responsible to his servant for any injury caused by the negligence of any person to whom the performance of this duty has been entrusted.” In Crispin v. Babbitt, 81 N. Y. 516, S. C., 37 Am. R. 523, the court stated the general principle, that “ The liability of the master does not depend upon the grade or rank of the employee whose negligence causes the injury,” and then proceeded thus: “ On the same principle, however low the grade or rank of the employee, the master is liable for injuries caused by him to another servant, if they result from the omission of some duty of the master, which he has confided to such inferior employee. On this principle Flike v. Boston, etc., R. R. Co., 53 N. Y. 549, was decided. Church, C. J., says, at p. 553: ‘ The true rule, I apprehend, is to hold the corporation liable for negligence or want of proper care in respect to such acts and duties as it is required to perform and discharge as master or principal, without regard to the rank or title of the agent entrusted with their performance. As to-such acts, the agent occupies the place of the corporation, and the latter should be deemed present, and consequently liable for the manner in which they are performed.’ ” In McCosker v. Long Island R. R. Co., 84 N. Y. 77, the same principle is recognized and enforced. The rule is thus expressed by another court: “ The duties are the duties of the master,, and he can not evade the responsibilities which are incident and cling to them by delegation to another. When the master appoints some other person to perform these duties, then the appointee represents the master, and though in their performance he may be and is a servant to the master, yet in those respects he is not a co-servant, a co-laborer, a co-employee, in the common acceptation of those terms.” Brothers v. Cartter, 52 Mo. 372; S. C., 14 Am. R. 424.

In another case it was said: “As to the acts which a master or principal is bound as such to perform toward his employees, if he delegates the performance of them to an agent, the agent, occupies the place of the master, and the latter' is deemed present, and liable for the manner in which they are performed.” Corcoran v. Holbrook, 59 N. Y. 517; S. C., 17 Am. R. 369.

Speaking of the duty of the master to the servant, the Supreme Court of the United States said : “Its duty in that respect to its employes is discharged when, but only when, its-agents whose business it is to supply such instrumentalities exercise due care as well in their purchase originally, as in keeping and maintaining them in such condition as to be reasonably and adequately safe for use by employees.” Hough v. Railway Co., 100 U. S. 213, 218. Wabash, etc., R. W. Co. v. McDaniels, 107 U. S. 454.

One of the first of the American courts to adopt and develop the doctrine that a master is not liable to a servant for the negligence of a fellow servant, and a court that has with as much sternness as any in the land enforced the doctrine, says: “ The agents who are charged with the duty of supplying safe machinery are not, in the true sense of the rule relied on, to be regarded as fellow servants of those who are engaged in operating it. They are charged with the master’s duty to his servant. They are employed in distinct and independent departments of service, and there is no difficulty in distinguishing them, even when the same person renders service by turns in each, as the convenience of the master may require.” Ford v. Fitchburg R. R. Co., 110 Mass. 240; S. C., 14 Am. R. 598. The general principle, that where the master entrusts to a servant a duty which he himself owes to those employed by him, he is liable for a negligent discharge of that duty, is also involved, and necessarily decided, in the cases of Mitchell v. Robinson, 80 Ind. 281, S. C., 41 Am. R. 812, and Ohio, etc., R. R. Co. v. Collarn, 73 Ind. 261, vide p. 273.

The duty of the employer to provide safe machinery and appliances is a continuing one. Thompson says: “ But the master does not discharge his duty in this regard by providing proper and safe machinery, or fit servants, in the first instance, and then remaining passive. ‘ It is a duty to be affirmatively and positively fulfilled and performed.’ He must supervise, examine, and test his machines as often as custom and experience require.” 2 Thompson Neg. 984. In support of this doctrine the author cites Warner v. Erie, etc., R. W. Co., 39 N. Y. 468; King v. New York Central, etc., R. R. Co., 4 Hun, 769; Shanny v. Androscoggin Mills, 66 Maine, 420; Lansing v. New York Central R. R. Co., 49 N. Y. 521; Snow v. Housatonic R. R. Co., 8 Allen, 441; Lewis v. St. Louis, etc., R. R. Co., 59 Mo. 495; Chicago, etc., R. R. Co. v. Swett, 45 Ill. 197; Illinois Central R. R. Co. v. Welch, 52 Ill. 183; Goheen v. Texas, etc., R. W. Co., 3 Cent. L. J. 382. ‘This is the doctrine of the Supreme Court of the United .States, as appears from the decision in Hough v. Railway Co., supra.

In Gunter v. Graniteville, etc., Co., supra, it was said: “ It is well settled that it is the duty of the master to provide suitable and safe machinery and appliances for the use of his operatives; .and, we think, it is also settled that his duty does not stop there, but that it is likewise his duty to keep such machinery in proper repair and in safe working order, and if these duties, or either of them, are negligently performed, and one of the servants thereby sustains an injury, the master is liable, even though he may have entrusted the performance of such duties to subordinates, by whatever name they may be called.” In support of this doctrine the court refers to the cases of Corcoran v. Holbrook, 59 N. Y. 517; S. C., 17 Am. R. 369; Brann v. Chicago, etc., R. R. Co., 53 Iowa, 595; S. C., 36 Am. R. 243; Fuller v. Jewett, 80 N. Y. 46; S. C., 36 Am. R. 575. The rule is supported by sound principle. The duty of the master is not at an end when he first equips his factory or mill, but continues as long as there are operatives who are entitled to assume that he will use due care to pro.vide safe machinery and appliances. It would overthrow the rule, that the risks which a servant assumes are only such as are incident to the use of machinery selected and maintained by the master with proper care, to deny the validity of our conclusion.

Ordinary care requires that a master shall take notice of the liability of the parts of the machinery to decay from age, or wear out by use. City of Indianapolis v. Scott, 72 Ind. 196; Board, etc., v. Legg, 93 Ind. 523; Board, etc., v. Bacon, 96 Ind. 31; Rapho v. Moore, 68 Pa. St. 404. It certainly needs no argument to prove that a factory owner must know that ■a rope, or materials of a similar character, will wear out, and that he has no right to assume that wear and use will not weaken or impair them. Ordinary prudence, therefore, requires that he should take notice of the liability of such things to wear out, and make provision for such contingencies. Eeason and experience unite in affirming that a'n owner-does not exercise even ordinary care, who gives no attention to the effect upon ropes, belts, timbers or the like, which is produced by the wear of continued use. It would be unreasonable to assert that an owner might entirely disregard the tendency of parts of his machinery to wear out, and intrench himself from liability on the ground that at the outset he had provided safe machinery and appliances.

We have ascertained the general principles which rule such cases as this, and it remains to ascertain whether they were correctly applied to the facts of this case. The appellee, on the morning that he was injured, received an order from Higginson, the foreman under whose immediate control he was, to run what was called the cut-off saw; this saw was a circular one, and worked through a groove in a table. The rope which held the saw back from the table, and in a great measure controlled its operation, broke, and the breaking of this rope caused the injury. The evidence shows that the rope was unsuitable, defective and unsafe, and there is" also evidence tending strongly to show that the foreman had notice of its condition prior to the morning the injury occurred. One of the appellee’s fingers was cut off, another was badly injured, his thumb was also much injured, his hand was split open to the wrist, his wrist and hand rendered stiff, and its serviceableness much impaired. He was confined to his bed for sometime, abscesses formed, several bones were extracted, and he-suffered great pain. He expended for medicine and surgical-attention $144.

The court did not err in instructing the jury that the appellant was responsible for the negligence of an agent appointed by it to act in its place in purchasing and maintaining machinery upon which the duties of the appellee required him to work. Nor did the court err in refusing the instructions asked by the appellant, asserting that if the appellant. had employed a competent superintendent, it was not liable although the machinery was unsafe. It was the duty of the corporation to provide and maintain, so far at least as ordinary diligence could do, machinery safe and suitable for the purposes for which it was used, and the court was right in instructing the jury to that effect. We do not think the appellant has just reason to complain of the ninth instruction, which informs the jury that if the exercise of ordinary diligence on the part of the defendant would have apprised it of the defective condition of the rope, and it negligently allowed the rope to become worn and insecure, the plaintiff, if free from contributory negligence, would be entitled to recover. This instruction, taken, as it must be, in connection with the others, was at least as favorable to the appellant as it had a right to ask. The doubt is, whether, under the authorities, the master is not held to more than ordinary diligence in such matters; but, however this may be, the least degree of diligence to which he is held by any case is ordinary- diligence.

In computing damages in such a case as this, it is proper to consider the pain and suffering endured by the injured person, the expenses incurred for medical attention, the character of the injury, whether temporary or permanent, and its effect upon the ability of the person injured to earn money or pursue his trade or profession. City of Indianapolis v. Gaston, 58 Ind. 224; Wright v. Compton, 53 Ind. 337; Cox v. Vanderkleed, 21 Ind. 164; Taber v. Hutson, 5 Ind. 322; Fisher v. Hamilton, 49 Ind. 341. In this class of cases, exemplary damages can not be awarded, but full compensatory damages may be given. It is said in a text-book of excellent repute, that, “In an action for negligent injury to the person of the plaintiff, he may recover the expense of his cure, the value of the time lost by him during his cure, and a fair compensation for the physical and mental suffering caused by the injury, as well as for any permanent reduction of his power to earn money.” Shear.&Redf.Neg., section 606. The court approved an instruction substantially like the one now befoi'e us in Fittsburgh, etc,. R. W. Co. v. Sponier, 85 Ind. 165, and in City of Huntington v. Breen, 77 Ind. 29. In City of Indianapolis v. Scott, 72 Ind. 196, an instruction in almost the exact language of the one under immediate mention was approved.

Filed Feb. 11, 1885.

We think the complaint sufficiently shows that the appellee suffered special damages, for it describes the injury and .avers that the “ plaintiff’s right hand has been permanently injured and ruined, and rendered unfit for use and labor.”

It is a settled rule of law that courts will not disturb a verdict on the ground of excessive damages unless they are, as •said by Chancellor Kent, so “ outrageous as to strike every one with the enormity and injustice of them, and so as to induce the court to believe that the jury must have acted from prejudice, partiality or corruption.” Coleman v. Southwich, 9 Johns. 45. This doctrine has often been enforced by this court. Ohio, etc., R. R. Co. v. Collarn, supra; Yater v. Mullen, 23 Ind. 562; Alexander v. Thomas, 25 Ind. 268; Reeves v. State, 37 Ind. 441; Hoagland v. Moore, 2 Blackf. 167; Guard v. Risk, 11 Ind. 156. In a recent text-book a like doctrine is laid down, and many authorities cited. Hayne New Trials, section 95.

Judgment affirmed.