On July 15, 1905, the defendant, being engaged in the ice business in the city of Davenport, sent out one of its delivery wagons in charge of an employe named Wagner. After starting upon the trip Wagner allowed his father-in-law, one Thomas, to get upon the wagon and ride with him and to assist in handling and delivering ice. The wagon having stopped in front of a house where a delivery ivas to be made, plaintiff, a child of eight years, with several other small children who were playing in that vicinity drew near, but, being called by their parents all withdrew except plaintiff. As the wagon stopped, Thomas went to the rear of the vehicle, and, taking up the tongs and a small tool known as a “ chipper,” laid hold of a piece of ice, and turned to deposit it on the ground or to carry it into the house. As
1. New trial : amendment after verdict. I. The original petition was drawn, and the case seems 1 o have been tried by the plaintiff, on the theory that the relation of master and servant existed between defendant and Thomas, and that for the negligence of the lat- ' # ° ° ter in service the former may be held liable. After the evidence had been introduced and a verdict for defendant had been returned, at the direction of the court, plaintiff filed a motion for new trial, in connection with which he tendered an amendment to his petition, alleging that Wagner was addicted to the excessive use of intoxicants and not a proper or competent person to be intrusted with the delivery of ice by the defendant, and that he was guilty of negligence in permitting Thomas, who also was intoxicated at the time, to assist in said work, and that the injury of the plaintiff was the proximate result of AVagner’s said negligence. As plaintiff had chosen his ground, proceeded to trial, and submitted his case on the claim as stated in the original petition, we think he cannot be permitted to mend his hold after a verdict has been returned against him, and demand a new trial on another and materially different theory. There was, therefore, no error in refusing a new trial, unless we find there was evidence upon which the issue joined upon the original petition should have been submitted to the jury.
3. MARSTER SERVANT negligence servant. II. Upon that issue the case could well be disposed of on the ground that, even if Thomas were the agent or servant of the defendant, there is no showing of actionable negligence on his part. There is nothing in the record to show that he knew or should have known ofi the presence of the boy in a place of danger. His action in taking the ice from the wagon and turning around with it was neither unnatural nor manifestly improper, con
3. Same. This view renders it unnecessary for us to go into a discussion of the interesting question argued by counsel concerning the liability of the master for the negligence of one who volunteers to assist the servant, or to do the work which has been intrusted to the servant. That there are circumstances under which such liability exists is well established. Aga v. Harbach, 127 Iowa, 147; Booth v. Wistar, 7 C. & P. 446; Haluptzok v. Railroad Co., 55 Minn. 446 (57 N. W. 144, 26 L. R. A. 739); Althorf v. Wolfe, 22 N. Y. 355; Rummell v. Dilworth, 111 Pa. 343 (2 Atl. 355, 363); Sloan v. Railroad Co., 62 Iowa, 728; Gleason v. Ansdell, 9 Daly (N. Y.), 393; Flick v. Railroad Co., 68 Wis. 469 (32 N. W. 527, 60 Am. Rep. 878); Lakin v. Railroad Co., 15 Or. 220 (15 Pac. 641); Carson v. Leathers, 57 Miss. 650; Railroad Co. v. Cusick, 60 Kan. 590 (57 Pac. 519); Englehart v. Farrant, 1 Q. B. 240; Bank v. W. U. Tel. Co., 52 Cal. 280; Simons v. Monier, 29 Barb. (N. Y.), 419; Shearman & Redfield’s Neg., section 157; Barstow v. Railroad Co., 143 Mass. 535 (10 N. E. 255); Keep v. Walsh, 44 N. Y. Supp. 944 (17 App. Div. 104); Dimmitt v. R. R. Co., 40 Mo. App. 654; Coal Co. v. Hayes, 12 South. 98 (97 Ala. 201). But, generally speaking, we think the rule of these authorities is not grounded upon the thought that one who assists a servant becomes thereby a servant of such servant’s master, except it be in -cases where we may find express or implied authority in the servant to employ or permit the assistance so rendered. In the absence of such authority, the one safe and logical ground
In the case before us there is no showing upon which an implication of authority in Wagner to employ or authorize .the assistance of Thomas in his work can be found. Hence the latter was not the servant of the defendant. It follows, therefore, as we have already stated, that a claim against defendant for damages occasioned by the negligence of Thomas cannot be sustained.
The conclusions above announced dispose of all material questions suggested in the arguments of counsel.
The judgment of the district court is affirmed.