Bloom v. Krueger

195 N.W. 851, 182 Wis. 29, 1923 Wisc. LEXIS 265

• Court: Wisconsin Supreme Court
• Decided: November 13, 1923
• Status: Published

Opinion

Doerfler, J.

During the lunch period the relationship of master 'and servant between the defendant and Parris was suspended, and the employee was at liberty to utilize his time solely for his own individual benefit and purposes. In other words, the lunch time was the employee’s time and not the employer’s. It is true that the evidence shows that Parris as an employee was exceptionally loyal and devoted to his employer’s interests, and that upon numerous occasions he resumed his work for the benefit of the employer before the expiration of the time allotted for lunch. The lunch period was exceptionally brief, and the amount of service out of this period which the employee could devote to his master’s business could only be negligible. But when we consider the facts in the instant case — the brief lunch period, the necessity of traveling back and forth a distance of nearly two miles, and the time ordinarily necessary to consume lunch, — there would be little or no time intervening during the half hour for the employee to perform service for the master; and it seems incredible, assuming that the master had knowledge of and consented to the use of the truck, that either he or the employee had in mind any benefit that would accrue to the master by the permission to use the truck.

The controlling fact in the case, which stands out foremost above all others, consists of the employee’s úse of the truck solely for the purpose of enabling him to obtain his noonday meal. Assuming that the employer either expressly or impliedly consented to the use' of his truck for this purpose, such use was and must be deemed to have been solely for the employee’s benefit during a period of time while the relationship of master and servant was suspended. An act of kindness on the part of the employer under such circumstances, while it may create a spirit of loyalty in the relationship existing between the employee and the master, cannot be construed to operate as a continuance of the relationship during a period where, under the law and the facts, such.relationship has actually been suspended.

It is therefore held that the truck in question was not used by the servant within the scope of his employment or for the purpose of facilitating the master’s business.

This case is ruled by the decisions of this court in Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016, and Gewanski v. Ellsworth, 166 Wis. 250, 164 N. W. 996.

The lower court therefore erred in ordering judgment for the plaintiff on the special verdict, and the motion of the defendant to change the answer of the jury to question number 2 of the special verdict from “Yes” to “No” and to or4der judgment for the defendant should have been granted.

Defendant’s printed case constitutes a serious infraction of Rule 6, ch. II, of the rules of this court. Approximately one third of the case is devoted to medical testimony not involved in the issues presented on this appeal, and a large portion of the balance of the case presents a record of the evidence by question and answer. Under the circumstances we have concluded to permit the defendant to tax costs only for one hundred pages of printed case, as we are convinced that such space would have been amply sufficient for the purpose of presenting approximately all of the issues. Dehsoy v. Milwaukee E. R. & L. Co. 110 Wis. 412, 85 N. W. 973; Moore v. Dickson, 121 Wis. 591, 99 N. W. 322; Gessner v. Roeming, 135 Wis. 535, 116 N. W. 171; Swanke v. Herdeman, 138 Wis. 654, 120 N. W. 414; Johanson v. Webster Mfg. Co. 139 Wis. 181, 120 N. W. 832; Steinberg v. Salzman, 139 Wis. 118, 120 N. W. 1005; Dreblow v. Albert, 155 Wis. 189, 144 N. W. 254.

By the Court. — Judgment reversed, and the cause is remanded with directions to the lower court to dismiss the complaint with costs.