
    J. D. BECK v. HENKLE-CRAIG LIVE-STOCK COMPANY and R. A. BASS.
    (Filed 24 May, 1916.)
    1. Issues — Gratuitous Bailee — Principal and Agent — Negligence—Veterinary Surgeons.
    Where, at the request of the owner of a mule, the keeper of a stable selects a veterinary surgeon skillful and capable, who operated upon the mule in a stall in the stable, and there is evidence that the mule was injured while being operated upon, by not being properly confined, receiving injury to its back from the top bar, the two lower bars not having been left in place, and the evidence is conflicting as to whether the stable owner received compensation or generally employed the surgeon for profit: Held, in an action against the stable keeper and the surgeon, issues relating to the negligence of the defendant stable keeper and as to whether the injury was caused by the surgeon are not determinative of the controversy as to the former; for while there is evidence that the surgeon was negligent, the liability of the stable keeper depends upon whether he was a gratuitous bailee, or employed the surgeon for profit to act as his agent.
    2. Principal and Agent — Negligence—Veterinary Surgeons.
    Where a mule being operated upon by a veterinary surgeon in a stall of a stable is injured by the want of proper confinement in the stall, and during the operation the surgeon has called to his assistance the aid of a hand working in the stable, the surgeon is responsible for the negligent acts of the stable hand which operated to produce the injury.
    Civil actiok, tried before Adams, J., at November Term, 1915, upon, these issues:
    1. Was the death of the plaintiff’s mule caused by the negligence of the defendant Henkle-Oraig Live-stock Company, as alleged in the complaint? Answer: “Yes.”
    2. Was the death of the plaintiff’s mule caused by the defendant R. A. Bass, as alleged in the complaint? Answer: “Yes.”
    3. What damage, if any, is plaintiff entitled to recover? Answer: “$100.”
    From the judgment rendered, the defendants appealed.
    
      Self & Bagby for plaintiffs.
    
    
      W. 0. Feimster, Council & Yount for defendants.
    
   Bbown, J.

The evidence tends to prove that the defendant live-stock company is engaged in the business of buying and selling horses and mules, and for this purpose conducts stables in the town of Statesville and other towns in this State. The defendant Bass is a veterinary surgeon, located at Statesville. In July, 1914, plaintiff sent his mule to the defendant stock company, requesting that it take charge of the mule and have him operated upon for knots in his shoulders. The mule was delivered to tbe stock company, wbo called upon tbe defendant Bass to perform tbe operation. In order to enable tbe veterinarian to perform tbe operation, be put tbe mule in a stock or stall used for tbe purpose of confining unruly animals and for operating purposes. Tbe evidence tends to prove tbat John Morrison, one of tbe defendant’s servants, was called on by Bass to assist bim in putting tbe mule in tbe stock. Tbis stall or stock was so constructed as to require three bars to bold tbe animal inside of it. Only tbe top bar was put up. While tbe operation was being performed tbe mule backed under tbe bar and injured bis spine so much so tbat be was paralyzed and ruined.

Tbe defendant company excepted to tbe issues as submitted, because they are not responsive under tbe allegations contained in tbe pleadings and are not determinative of tbe action.

Tbe defendant company contends that tbe defendant Bass was not its agent and tbat tbe company is not responsible for bis negligence; tbat they run their business separately and independently, and have no connection whatever tbe one with tbe other, except tbat tbe company employs Bass to treat its live stock when needed and pays bim bis professional fees for bis services. Tbe defendant company alleges tbat it bad nothing whatever to do with tbe treatment of said mule, except as a favor to tbe plaintiff to phone tbe veterinary surgeon tbat tbe mule was at its stables awaiting treatment.

First, as to tbe defendant tbe Henlde-Craig Live-stock Company. We are of opinion tbat tbe issues excepted to and submitted by tbe court are not determinative of tbe issues raised by tbe pleadings. All tbe evidence tends to prove tbat tbe defendant company was acting as tbe bailee of tbe plaintiff and without consideration, except tbe defendant Bass was its agent and employed by tbe defendant company as a veterinary surgeon for profit. There is no evidence tbat tbe defendant company was negligent in selecting Bass as a veterinarian, as it is not disputed tbat be was a skillful and competent veterinary surgeon. Tbe defendant company contends tbat their only relation with bim was tbat of a veterinarian, doing business on bis own account and not for them, and occasionally employed by tbis company to treat their own horses and mules, for which be received bis professional fees.

If tbe fact be tbat Bass was not tbe agent and employee of tbe defendant company generally, but practices bis profession on bis own account, and was called in by tbe company to treat tbe plaintiff’s mule, then tbe defendant company would not be liable for bis negligence. But if tbe fact be tbat tbe defendant Bass was employed generally by tbe defendant company as a veterinarian, and tbe company received compensation for bis services and used bim for purposes of profit, then Bass would be their agent and they would be liable for bis negligence. Tbis fact is at issue by tbe pleadings, and is not determined by the verdict of the jury. "We think his Honor erred in not submitting an appropriate issue based upon these allegations of the pleadings.

Second, as to the defendant Bass. The motion to nonsuit was properly overruled. There is evidence of negligence in the manner in which the mule was attempted to be confined in the stock. It is immaterial whether it was caused by the negligence of John Morrison, the assistant of Bass, or not. It was Bass’s duty to see that the mule was properly confined so as not to injure itself, before he commenced his operations.

Upon an examination of the record as to the defendant Bass, we find no error. As to the defendant Henkle-Craig Live-stock Company there must be a new trial.

The costs of the appeal will be taxed against the plaintiff.

New trial.  