
    John M. Cofield vs. James McCabe et al.
    
    Submitted on briefs June 29, 1894.
    Reversed July 13, 1894.
    No. 8875.
    Verdict not supported by the evidence.
    Verdict held to be contrary to the evidence.
    Appeal by defendant, James McCabe, from a judgment of the District Court of Crow Wing County, G. W. Holland, J., entered January 31,1894, for $827.55.
    James McCabe kept a saloon at Brainerd for the sale of intoxicating liquors, and Patrick McCabe was his bartender. On July 6, 1893, the plaintiff, John M. Cofield, a farmer, was there noisy and disorderly. Patrick McCabe called him into a back room, assaulted him, and broke his leg. James McCabe was not present. Plaintiff brought this action for assault and battery against both the Mc-Cabes, and obtained a verdict against both for $300. James McCabe moved for a new trial, but was refused, and judgment was entered on the verdict. James McCabe alone appeals.
    
      W. S. McClenahan, for appellant.
    
      W. A. Fleming, for respondent.
   Gtlfillan, C. J.

It is impossible to sustain tbe verdict against the defendant James McCabe.

From the plaintiff’s own testimony, the assault on him by Patrick McCabe was no way connected with the business of his employer, James McCabe, who was not present, and knew nothing of it. According to that testimony, it ivas an independent act of Patrick, on his own account. The only particular in which the other testimony tends to vary the story as told by plaintiff is in its tending to show him the aggressor. The judgment must be reversed as to James McCabe.

Judgment reversed.

Buck, J., absent, sick, took no part.

(Opinion published 59 N. W. 1005.)  