On May 6,1936, appellee, an employee of appellant, Yincennes Steel Corporation, was struck in the right eye by a steel rod which was being passed through a wooden form into which concrete was to be poured,' in the construction of a bridge across Illinois Bayou in Pope county. The eye was destroyed and he suffered severe and painful injuries therefrom. The form was about 15 feet high and about 30 feet long, with a space on the inside of about 18 inches. It was made of tongue and grooved flooring called the web wall, nailed to 2 x 4 upright pieces on the outside of the web wall, and on the outside and nailed to the 2 s 4’s were 4 x 4’s called whalers, evidently meaning wales. These wales extended horizontally around the form, at right angles to the 2 x 4’s, and extending from bottom to top at spaces of about 2 feet, for the purpose of preventing the form from spreading when the concrete was poured in. To further safeguard the form from spreading, holes 9/16-inch in diameter were bored through the wales and the web wall on one side and corresponding holes in the web wall and Avales on the other side, through which small steel rods %-inch in diameter were inserted, extending through the form and several inches on the outside of the wales. Steel washers with set-screws were then put on the rods and fastened thereto flush with the outside of the Avales. Appellee, Luther Summers, foreman, and Burl Wait were engaged, at the time of the injury, in inserting the rods through the holes. Wait was on the west side of the form, Summers on the inside and ap-pellee on the east side. Wait Avould insert the rod on the Avest side, pass it through the Avale and the Aveb Avail, where it Avould be received by Summers Avho Avould guide *39it through the web wall on the east side to appellee who would guide it through the wale. It'frequently happened that, because the holes did not exactly correspond, appel-lee experienced some difficulty in getting the rods through the wale on his side, in which event he would maneuver the rod into place with his hand, or his hammer, then, on direction from him to Summers and from Summers to "Wait, the latter would strike the end of the rod on his side and drive it through. Neither could see either of the others, and Wait could not hear appellee give directions to hit it, so the directions to do so were relayed through Summers.
' Appellee brought this action for damages against the Vincennes Steel Corporation and Burl Wait, and alleged as a ground of negligence, as stated by the court in instruction No. 1, the following: “He alleges as the sole cause of his injuries that the defendant, Burl Wait, struck an iron rod which he knocked through what is commonly called a whaler, and hit him in the eye; that the said Burl Wait hit the iron rod without instruction from his -boss, Lee Summers, or any one. The defendant denies that Burl Wait so hit the iron bar, but states that Burl Wait hit the same after receiving instructions to do so from his boss, Lee Summers. The defendant further contends that the plaintiff gave instruction to Lee Summers to have the bar hit who transmitted the same on to Burl Wait, and that plaintiff was guilty of contributory negligence and assumed risk which will be hereafter defined.”
It will, therefore, be seen that the sole negligence laid and relied upon was that of Wait, in that he hit the rod without a previous direction to do so. Appellant contends that the undisputed evidence is that Summers gave and Wait received an order to “hit it,” and that the only dispute in the evidence is whether' appellee gave Summers the order. Appellee says he did not give Summers the order whereas the latter says he did. Appellee, also, says that Summers told him to hit it, meaning hit the wale with his hammer, so as to move it up or down to bring the hole in conformity with the rod.' Summers *40says be gave no order to appellee to bit tbe wale, as be could not see either tbe wale or appellee, but did give snob order to Wait on tbe direction of appellee. Moreover, be says it would do no good to bit tbe wale as it was tightly nailed to tbe upright 2 x 4’s and was immovable. So, tbe undisputed evidence is that Summers gave an order to bit it; that Wait received tbe order and obeyed it; that appellee, believing tbe order was meant for him to bit tbe wale, did so and was not expecting Wait to bit the rod; that Wait, thinking tbe order.was meant for him, did bit the. rod, knocked it through tbe bole in tbe wale, and destroyed appellee’s eye. Under this state of tbe record, was Wait negligent?
Trial resulted in a verdict and judgment against both Wait and' Yincennes Steel Corporation in the sum of $10,000, tbe amount sued for.
We are of tbe opinion that Wait was not shown to be guilty of any negligence, and that tbe trial court erred in refusing to direct a verdict in favor of both upon their motion so to do. Tbe only negligence charged or relied upon against appellant was that of Wait in bitting tbe rod without a previous order to do so. If Wait was not negligent in this respect, then, of course, under tbe allegations of tbe complaint and tbe instructions of tbe court, appellant could not be held. As said by this court in Hecht v. Caughron, 46 Ark. 133, tbe chief object of our system of pleading is “to compel the adverse parties to disclose to each other tbe facts upon which they rely to uphold tbe claim upon tbe one side, and to maintain tbe defense on tbe other, in order that each may know what be is required to establish or repel by proof upon tbe trial.” This statement was quoted in Harvey v. Douglass, 73 Ark. 221, 83 S. W. 946, with this additional: “In other words, the object of tbe code system is to force a trial on tbe merits, and pleadings must furnish tbe opposite party notice of exactly what is to be relied upon in a trial on tbe merits.” Here tbe parties went to trial upon an allegation that Wait’s negligence was tbe sole cause of tbe injury. It developed on tbe trial that Wait was not negligent, but perhaps Summers was. At least *41the evidence was in dispute as to whether appellee gave Summers the order to “hit it” to he relayed to Wait, hut there is no dispute that Summers gave such an order. But appellant cannot be held for Summers’ negligence under the issue made. If the action had been brought against appellant and based on the negligence of Summers alone, Wait would not have been a party. He being a resident defendant, joined with a nonresident corporation, may have prevented appellant from attempting a removal of the action to the federal court. In any event, appellant was entitled to know which of its employees was charged with negligence, so as to be able to defend the charge intelligently, or take such steps in the premises as it deemed advisable. It could act only through human agency and is responsible only under the doctrine of re-spondeat superior.
Since Wait was not guilty of negligence, appellant cannot be held bound for an act of his which was not wrongful. The judgment will, therefore, be reversed, and the cause dismissed.
Humphreys and Mehaeey, JJ., dissent.