150 Wis. 93 | Wis. | 1912
The following opinion was filed April 3, 1912:
Defendant claims the evidence does not sustain the finding, that it had taken charge of the logging operations in Mechling’s camp' at the time plaintiff was injured, and hence that the relation of master and servant did not exist between the parties. Plaintiff’s evidence on this subject was to the effect that Patrick was an experienced woodsman and cruiser who had been employed by the defendant for seven or eight years; that from the time he went up there about the 1st of March he remained almost continuously till the injury occurred on the 11th; that the amount of Mechling’s scale was in dispute, the defendant claiming it was from ten to fifteen per cent, too high; that at’ the end of the season a deduction of 200,000 feet was made; that Mechling was running behind on his contract, and this was known to the defendant and discussed by its officers; that Lee & Company, who had furnished supplies to Mechling, refused to furnish more, and were applying money advanced by defendant to the payment of supplies instead of to the payment of labor-claims ; that Mechling was then indebted to Lee & Company in the sum of about $1,000; that defendant itself refused to pay any more time checks, and there were claims against the pulp wood delivered. Such, the evidence of plaintiff shows, was the condition of affairs known to the defendant when
“It is well understood that every delegation of power carries with it the authority to do all those things which are reasonably necessary and proper to carry into effect the main powers conferred, and which are not forbidden, and that secret instructions cannot affect such apparent powers to the detriment of third persons who have dealt with the agent on the basis of his apparent authority.”
It is urged that the statements of Patrick made in giving orders to the men were inadmissible in evidence on the ground that agency cannot be established by the declarations of the alleged agent. They were not received for the purpose of establishing Patrick’s agency, for that was admitted. They were competent upon the question as to whether or not the defendant took charge of the work. Upon this question, evidence as to the situation of the parties to the Mechling contract, what the defendant did, and what Mechling did, was competent. And the giving of directions by Patrick to the men as to what they were to do, and how the work should be conducted, must be regarded as the ads of the defendant’s agent and not as mere oral statements affecting the question of his agency. The giving of an oral order to the men was an act in the sense that it showed what the agent did. We therefore conclude the court did not err in permitting evidence of the directions given by Patrick to the men while in ■ camp. Such evidence bore upon the disputed question as to whether or not Mechling or the defendant was carrying on the work at the time plaintiff was injured.
The evidence as to Skalski’s incompetency as a loader is quite vague and unsatisfactory. It is to the general effect that he was not handy with the hook; that he could not catch hold of a log as he ought to; that he was awkward and got off the cars when the logs came up. But there is also some evidence that he did not place the logs in proper shape so that they would lie firmly on the load. He was a young man,
A further point is made by tbe defendant tbat tbe incompetency of tbe loader was not tbe proximate cause of plaintiff’s injury, since tbe loading bad been finished sometime before plaintiff started to move tbe car down tbe track at which time tbe log fell off and injured him. Tbe jury found tbat tbe incompeteney of Skalski was tbe proximate cause of tbe injury to plaintiff, and in so doing they must have found tbat tbe log fell off by reason of its not having been properly loaded. It is not necessary tbat tbe proximate cause be immediate in time. Deisenrieter v. Kraus-Merkel M. Co. 97 Wis. 279, 72 N. W. 735. Tbe fact tbat tbe accident took place sometime after tbe loading was completed and when tbe loader was not present is immaterial.
John LaSpronce was sworn as a witness for defendant and testified in chief as to bow tbe work was conducted in Mech-ling’s camp and more particularly as to bow Skalski loaded tbe cars and bow it was customary to load cars in logging camps. Upon cross-examination be was asked, against defendant’s objection, if at a certain time and place be stated to one Charles Hunter that the witness Patrick bad requested LaSpronce to sign a paper stating tbat tbe defendant bad not taken tbe contract out of Mechling’s bands and tbat Patrick bad offered to give LaSpronce tbe Mechling contract if La-Spronce would sign such paper, and tbat LaSpronce refused to do so. In reply to this inquiry tbe witness stated tbat.be bad not made such statement to Hunter, tbat be bad not signed any paper for Patrick, that Patrick bad not asked him
Since there must be a new trial for the reasons stated, several alleged errors relating to instructions given and refused, .as well as to tbe refusal to submit certain questions proposed •by tbe defendant and tbe giving of other questions contained tin the special verdict, will not be noticed. They are of minor importance and not likely to recur upon another trial.
For tbe errors committed by the trial court in permitting •the witness Hunter to testify apparently to impeach the wit
By the Ooiurt. — Judgment reversed, and cause remanded, for a new trial.
A motion for a rehearing was denied June 4, 1912.