Apex Smelting Co. (Apex) (plaintiff) hired Burns (defendant) to provide armed guards for its manufacturing plant. Under the terms of the contract, Burns was to be responsible for hiring, equipping, paying, and supervising the guards. Further, the contract provided that Apex’s wishes would be taken into account regarding the replacement of guards. Burns hired Harry Frontczak as a guard. Subsequently, Frontczak set fires and caused a combustion on Apex’s property. Apex sued Burns for damages. Burns moved to strike Apex’s complaint as legally insufficient and to dismiss the case. Burns claimed that Apex did not allege any negligence or breach of contract by Burns. The court denied the motion without prejudice so that it could be renewed at the close of Apex’s case. Burns then answered the complaint admitting to the existence of the contract and hiring Frontczak, but denying that Frontczak was acting within the scope of his employment. Burns’s answer also reiterated the assertion that Apex did not allege any breach of contract or negligence. At the close of Apex’s case, Burns moved for a directed verdict. The district court directed that a verdict be entered in Burns’ favor. Apex appealed to the United States Court of Appeals for the Seventh Circuit.