Trial — objectionable statement of counsel held cured by instructions to disregard,
8. Error assigned upon alleged prejudicial remarks of counsel in the argument to the jury considered, and held not well taken.
Master and servant — joint liability not relieved by fellow-servant doctrine.
9. For reasons stated in the opinion it is held that the defendant, The Washburn Lignite Coal Company, is not relieved from liability by virtue of the fellow servant doctrine.
Damages — verdict for $8,000 for probably permanent injuries held not excessive.
10. A verdict for $8000.00 is held not excessive.
Opinion filed Jan. 20, 1922.
Appeal from the district court of Morton county, Berry J. Both defendants appeal from a judgment and from an order denying their motions for judgment notwithstanding the verdict or for a new trial.
Affirmed.
Lee Combs, G. F. Dillam, John E. Palmer, for appellants.
“Officers who have no personal knowledge of the transaction, hav- ing been appointed long after the transaction in issue, cannot be examined.” Blasius v. Ins. Co. 175 N. Y: Supp. 709.
“A mere soliciting agent or salesman is not managing agent or officer under the terms of the statute.” Blasius v. Ins. Co. Supra; 10 Cyc. 1342, first col. note; Hancock v. Ins. Co. 107 Mass. 113; Gunn v. N. Y. & N. H. Co. 50 N. E. 1031; McComb v. Chicago, St. Louis & New Orleans R. R. Co. et al, 7 Fed. Rep. 426.
The officer examined must have been an agent or officer of the corporation at the time of the occurance of the facts which are the sub- ject of the examination or he cannot be lawfully examined under such statute. Johnson y. St. Paul & W. Coal Co. (Wis.) 105 N. W. 1048; Hughes v. Chicago, St. Paul & Omaha Ry. Co. (Wis.) 99 N. W. 897.
“An engineer is not the agent of the company to discourse on its account as to what may or may not happen or what is best for another employee to do in case of peril in the employment.” Ohio & R. Co. v. Stein, 133 Ind. 243, 31 N. E. 180; Jones on Evidence, Vol. 2 p. 806, § 358 and cases cited; Reynolds v. Continental Ins. Co. 36 Mich. 131;
