
    No. 401
    SELI v. KLAGES COAL & ICE CO.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 896.
    Decided Feb. 16, 1925.
    751. MASTER AND SERVANT—1. Whether or not the servant was acting for the master, in the prosecution of master’s business, and within scope of his employment, is a question of fact for the jury.
    2. Statement of vicious nature of servant stricken out because not complete.
    Attorneys—May & May, for Seli, Seiber, Seiber & Amer, for Company; all of Akron.
   FUNK, J.

George Seli brought an action against the Klages Coal and Ice Co. for injuries received by reasqn of being struck with ice tongs by an employe of the company. The judgment of the Summit Common Pleas was in favor of the company. Error was prosecuted and judgment is asked to be reversed because the lower court struck certain allegations from the original petition. Seli claims the court also erred in sustaining a general demurrer to his third amended petition.

It is contended that the Court struck out an allegation that the employe was of a vicious nature, and that it sustained a demurrer to an allegation that Seli was struck while the servant was within the scope of his master’s employ. The Court of Appeals held:

1. Striking the statement alleging vicious nature of servant, from petition was not error, as it did not state all the allegations essential to make them relevant and material.

2. Sustaining a demurrer to the allegation in the amended petition was error, as a good cause of action was stated and the essence oí the allegation, being a question of fact, was a question for the jury to determine. Judgment reversed and cause remanded.  