91 Wis. 432 | Wis. | 1895
It is, in effect, conceded that the plaintiff’s premises were injured and that she was damaged as alleged, about August 1, 1891, and that such damage was caused, in part at least, by opening the dam mentioned for 'the purpose of creating a flood to drive a large quantity of logs, belonging in part to one Frazier, in part to the defendants, and in part to other parties. There is evidence tending to prove, not only that the defendants participated in raising the dam in the summer of 1891, and a short time before the flooding mentioned, but also in operating the same and making the drive at the time in question. If Frazier was the mere agent of the defendants in running their logs, then, of course, the defendants would be liable for his wrongful conduct in the matter of such agency. There is also evidence tending to prove that Frazier had the full control of the dam and the drive at the time; that he employed all the men and obtained all the supplies; and that the defendants were merely to pay him a compensation for driving their logs. Upon the evidence in the record, we think it was for the jury to say, under proper instructions, whether the defendants participated in operating the dam and making the drive at the time, or whether Frazier was an independent contractor.
One who, as an independent business, undertakes to do
We are also of the opinion that there is evidence tending to prove that the case comes within the exception mentioned, and hence that that branch of the case should have been submitted to the jury.
It was competent, upon appeal from the justice’s court, to allow the plaintiff to make any reasonable and proper amendment of her complaint in respect to the cause of action at- . tempted to be set out in it, but not to amend it by adding a new and independent cause of ^action. While the action of the court in striking out the second count or cause of action, without previous notice of a motion for that purpose, and after the trial had been commenced, was quite irregular, it would be useless to restore it for that reason, when it would be subject to be stricken out again on proper notice.
For the reasons stated, there must be a new trial.
By the Court.— The judgment of the superior court of Douglas county is reversed, and the cause is remanded for a new trial.