Winkler v. Fisher

70 N.W. 477, 95 Wis. 355, 1897 Wisc. LEXIS 194

• Court: Wisconsin Supreme Court
• Decided: February 23, 1897
• Status: Published

Opinion

MaRshall, J.

The master is liable for the negligent acts of his servant within the scope of the latter’s employment. If the servant steps aside, however, from his master’s business, though but temporarily, to do some act outside the business of his master, the relation of master and servant during such time is suspended; and, whatever the latter does during such time, the consequences are not chargeable to the former. 14 Am. & Eng. Ency. of Law, 809. That sufficiently states the law applicable to this case, and the jury was so substantially instructed by the court. Under such instructions, on the evidence, they/found specially that the Eisher boy, on the day of the accident, was employed by defendant to shoot crows, at ten cents apiece, and that he was in defendant’s employ under such contract, and acting within the scope of such employment, at the time of the accident. Such finding is challenged as contrary to the law and the evidence, which raises the principal question for our consideration.

The evidence tends to show that, on the morning in question, defendant told his son to go into the field and shoot crows, whenever he had- spare time, and that defendant would give him ten cents apiece for all he would kill; that on.the day previous the two boys arranged to go hunting; that, pursuant to such arrangement, they started out about 12 o’clock, and went from place to place, through the woods, wholly outside defendant’s farm, for the purpose of shooting game other than crows; that up to about 4 o’clock in the afternoon they had killed two squirrels, at which time they were about two miles from defendant’s house, and in the vicinity of Mack’s house. They then agreed to go through a piece of woods back of the latter’s house, and from there home. At the suggestion of the Seeber boy, they stopped at Mack’s house to get a string to tie the squirrels together. After the striug was procured, and as they started to leave, and just before the accident happened, the Fisher boy said: “We must be going, or we. will not get many crows. Father offered us ten cents apiece for all the crows we would kill to-day.” Such, in substance, is the evidence bearing on the question of the relation between defendant and his son at the time of the accident. We fail to find any evidence tending to show that during the day the boy had been hunting crows in his father’s field or elsewhere, under contract with the latter or otherwise, or that he was, at the time of the accident, in his father’s employ, hunting, and his servant for such purpose in any sense whatever. The verdict of the jury to the contrary, clearly, is unsupported by the evidence; and the judgment must be reversed, and a new trial granted,' for that reason.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.