Thorp v. . Minor

Clark, J. having stated the case as above, proceeded: We concur with his Honor— 1. The plaintiff could not recover against the defendant Hester, because he was an infant and no guardian ad litem had been appointed. 2. Nor against the clerk, W. A. Wilkerson, for there is no allegation of any kind against him in the complaint, his name not being so much as mentioned therein. There must be allegata as well as probata. 3. Nor against Meadows and Wilkerson, as the evidence did not disclose that ITester was in their employ. The clerk (W. A. Wilkerson), as to the use of the horse, was not acting in the scope of his employment, and it was as if the horse had *154 been loaned or hired to anyone else. The mere request to the clerk to send the horse back would not have made the firm responsible for the pay of the person who brought the horse back, if he charged for such service, and of course would not, therefore, have made them responsible for his negligence. Whether the clerk borrowed or hired the horse, it was an implied part of the hiring or borrowing that he should return the horse, and if he chose to send him back by another, such other was his servant and not the servant of the firm. If the clerk had driven the horse back himself, the firm would not have been responsible for his negligence, nor can they be made liable because he chose to send him back by a substitute. 4. Nor is there any evidence to charge the owner, Minor, with negligence or liability in any respect. Affirmed.