The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1928-12-07


AS to the alteration, he argued
that the question Of authority arose.
Admitting that show people had par
ticipated in it, there was no evidence
that they acted by authority within
the scope Of their employment and
conceivably may have violated the
orders of their master. His point
was that nothing that happened in
the alteration had been linked I'D
to the defendant, nor even that the
men engaged in it were show en-
ployes.
In the absence of authority from
the show head, he argued, the as
sailants had stepped outside Of TIE
scope Of their employment ]. aed
were, wherefore, personally res pori-
sible Tor the injury inflicted. ia the
case Of one individual, the only tes-
timOny to show connection with the
show was that he had a satchel. At
that he may have been an interloper,
said Mr.. Craven.
Defense Begins Story
Counsel Thorpe, for the plaintiff.
argued that the governing legal
principle was that the defendant was
liable If his servants went beyond
the scope of their authority in exer-
cising the duties of their employ
ment. He referred to continuance of
employment Of an offending servant
or agent as linking the principle Of
malice to the master by ratification.
The right to ask exemplary dam
ages was left to Judge Miller to deal
with in his instructions to the jury
and Counsel Craven then presented
the shows side Of the Medina fight
of June IL, last, to the jury. His
statement was Immediately followed
by the testimony Of Mrs. Engesser.
who duplicated the statement Of
Counsel Craven by her answers on
the stand.
The show story, as thus presented,
is that Klett came up to the ticket
wagon to inquire about the compli-
mentary tickets in dispute and had
been assured by Mrs. Engesser that
they would be honored At the main
entrance. Mrs. Engesser said he
turned from questions to profane de-
nunciation and her voice broke as she
recited the alleged oaths used.
Says Klett Profaue
In part Mrs. Engesser said Klett
had charged that the show people
were crooks and thieves and that if
the tickets were not accepted as
good there wouldn't be any show.
do you realize that you are in
sulting LADY," she said she asked
Klett.
"Lady-?" she testified Klett
replied with lot Of scorn in his
tones-"We ride such women out Of
town on q rail-"
Better be on your way or I'll call
on the law" she testified she warned
Klett, and she added to this that his
answer was that there was no law.
Fight Begins
Then the fight began. The ham,
burger man, Cooper, came up and
Klett hit him after some jawing 1t
each other, she said. Raider . band
man and I'D solicitor, came out with
out knowing Of the alteration, she
said, and was promptly knocked into
the middle Of the entrance marquee
by Bert Carter.
The blow across Klett's head, she
said, was struck by the hamburger
man. He welded half Of I two-by-
four used in barring the rear door
of the ticket wagon, she said, after
he had been kicked by Carter. Her
husband drove up a. Klett was led
away.
Cooper was described O. con-
cessionaire who paid the circus 365
and SIS q week for the privilege
Of following the circus with his re-
freshment business. He was no en-
ploye in any sense, she testified and
did no voluntary work. His con-
tract was verbal. He paid oil his
help.
Mrs. Engesser said she knew this
as secretary-txeasurer Of the show.
She and her husband made the
agreement with Cooper.
Presentation Of tho plaintiff
claims for $15, 1000 damages IN the
suit Of Albert Klett, Medina mer-
chant, against the Zellmar Brothers
circus, growing out Of : fight on
the show grounds at Medina last
June Is, was completed Thursday
afternoon IN federal court, with tho
exception of entering some ex-
pectancY- of. affe tables. Judge 1il1er
lQQ1tp16 G. leoQ tla