This is an action, for an assault and battery, admitted to have been unjustifiable, committed by the defen drant’s servant, upon the plaintiff. The case went to the jury on the single question whether the servant was acting within the scope of his authority. The scene of the assault was a race track, and the servant had been employed by the defendant about the track for a long time. The plaintiff contended and asked for a ruling that, in connection with his long employment and the fact that the defendant did not call him to deny it, the servant’s conduct was evidence of his authority. The judge refused the request and ruled that the servant’s acts were not evidence of his authority as against the defendant. The plaintiff excepted. The only exceptions are tq this refusal and ruling.
The ruling of the judge was right. Brigham v. Peters, 1 Gray, 139. Mechem, Agency, § 100. That asked for the plaintiff might have been rejected properly enough even if it had not been wrong in point of law, as an attempt to gather details into an argument and then to put the argument into the mouth of the judge.
The servant was present in court and stood up to be identified before the jury. Neither party saw fit to call him. The judge in adverting to the fact that the defendant did not put him on the stand, left it wholly to the jury to say whether under the circumstances any inference should be. drawn as to what his testimony on the point of his authority would have been. This was as much as the plaintiff was entitled to. The judge could not discriminate against the defendant for not doing what, so far as appears, was equally in the power of both parties to' do, and give to the' défendant’s. omission the effect of making the servant’s acts prove his authority, when otherwise they could not have that effect.
Exceptions overruled.