Barlow, Sanderson & Co. v. Emmert ( 1872 )

The opinion of the court was delivered by

Kingman, C. J.:

Thepetition in error in this case prays for a reversal of the'judgment, and assigns as causes of error three grounds as follows:

“ 1st. That the court erred in its instructions given to the jluT-

“2d. That the court erred in admitting the evidence of the plaintiffs, to which plaintiffs in error objected.

“3d.' That the judgment was given for Enunert and Cor-many, when it ought to have been for Barlow, Sanderson .& Co.”

Upon an inspection of the record we find that but a portion ■of the charge of the court is preserved, and no exception whatever was made to any part of it, or to the whole of it. It is not necessary to give reasons for again deciding that under such circumstances this court wi 11 not examine the charge of the court. The defendants (plaintiffs in error) asked one instruction which the court refused to give. To the refusal of the court to give this instruction exceptions were duly made, but this refusal is not made a cause of error in this court, and therefore cannot be passed upon. As to the second error alleged, it is only necessary to say that there does not appear to be any of the evidence that was offered on either side that was objected to. But one possible question can be considered in this case under the third assignment of error, and that is, does the petition state facts sufficient to constitute a cause of action? No point was made in the court below, either by demurrer, or by objection to evidence, or in any other way, to the sufficiency of the petition. . The defect claimed here is, that the petition charges a direct trespass committed by the servants of the defendants of their own willful and wicked intent, and that therefore the master is not liable. It is a sufficient answer to this to say that the petition does not so state, but taken as a whole it avers that this injury was produced by the fault and carelessness of the servants of the defendants, in the prosecution of the business in which they were employed. It is the defendants themselves that are charged with the fraudulent and wicked intent, and not their servants. The record does not purport to contain all the evidence, but so far as it appears seems-to justify the verdict rendered. For the reasons given the judgment is affirmed.

All the Justices concurring.