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On Petition eoe Reheaeing

BEAN, C. J.

Defendant has filed an urgent petition for a rehearing. There is some confusion in regard to the record. In our references to the facts in the case it was intended to state what the testimony tended to show, or, what is the same thing, what the jury was warranted in finding, and not to find the facts. There can be no question but that the jury is the judge of the facts in the case and the credibility of all the witnesses. We may not have prefaced each paragraph of our former memorandum with the statement that “the testimony tends to show”. Such statement perhaps was mentioned only twice in our former memorandum.

Counsel for defendant challenges a statement in our former opinion, saying that “there appears in the opinion a misapprehension of the facts. We have reference to the court’s statement respecting the operating *365 of the ambulance by the parties for a period of a year and a half. * Information furnished to the jury on that point, which was evidently overlooked by counsel for defendant in the preparation of the petition for rehearing, possibly on account of new counsel appearing in the case, may be found first on page 140 of the transcript, the testimony of Frank Mulligan, a witness for defendant, who testified in regard to being employed in connection with the ambulance. We quote:

‘ ‘ Q. Mr. Gordon Miller told you you would be working for the Ambulance Company?

A. That is what he told me; when I was working with the ambulance it was the Ambulance Company.

Q. When did he tell you that ?

A. It has been a year and a half ago, or such matter.”

Again on page 142 of the transcript:

“Q. Mr. Miller told you you were working for the Ambulance Company?

A. Yes, sir.

Q. And that was just at the time you went to work?

A. It has been about a year and a half ago. ’ ’

We are not aware that the time Miller had been operating the ambulance was questioned.

Mr. Miller, testifying in regard to the employer’s report of Frank Mulligan’s injury to the State Industrial Accident Commission, which was made in the name of the Ambulance Company, by Gordon Miller, as shown on page 206 of the transcript, said:

“Q. Did you sign this instrument with the knowledge, consent and acquiescence of the officers of the Ambulance Company?

A. They knew about it. I didn’t ask them at the particular instance, but that is the way I always conducted the business, and they were familiar with the case at the hospital, and they knew the report was going in under Ambulance Company.”

*366 We understood the testimony at the time of writing the former opinion, and understand it now, as indicating -or “tending to show” to the jury that Miller had been doing business for the Ambulance Company for about a year and a half. It would have been more accurate in the opinion where reference is made to submitting the question of the agency of Miller, under the agreement and all the circumstances showing how the business had been conducted for about a year and a half, to the jury “according to the construction of the memorandum by the parties themselves,” to have added, “during a portion of that time.” We fail to see that it is very material. It is certainly not a pivotal question. There was no doubt in our minds that the agreement, copied in our former opinion, constituted Miller an agent or manager of the defendant Ambulance Company, which was the main question in the case. Denominating that agreement a “lease,” as was done in defendant’s brief, does not make it a lease.

We have carefully read all of the testimony in the case and believe that the question of the amount of the damages was one for the jury. This question is discussed in the brief on petition for rehearing. We do not think that as a matter of law we can say that there was no testimony to support the verdict of the jury fixing the amount of the damages.

The other questions referred to we think were all gone over in our former opinion. We find no reversible error in the record.

The petition for rehearing is denied.

Rand, Bailey and Kelly, JJ., concur.

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