Freeman v. Dells Paper & Pulp Co.

The following opinion was filed April 3, 1912: Viitje, J. 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 — 99 — Patrick went to tbe camp about March 1st, and this condition, the evidence shows, was discussed by Stilp, who was then in charge of defendant’s business, and Patrick, and it was their opinion that it cost Mechling too much to log. It was not possible to ascertain from the officers of the defendant just what instructions were given Patrick, but he testified that whatever instructions were given him he carried out when he arrived at the camp. The evidence of plaintiff also shows that when Patrick came to the camp he assumed full control of the operations. He gave all the orders. He hired men, and discharged at least one man. He made out all the time checks except the one given to the plaintiff, which was made out by Mechling at Patrick’s request Supplies were bought by him and sent to the camp in the name of the defendant. Mechling gave no more orders to the men, but became a common laborer, though the evidence showed he had worked as a laborer while he had charge of the camp earlier in the winter. The defendant’s evidence on this subject contradicted plaintiff’s in many material respects.' So it became a question for the jury to say which was the more credible, and to find there-' from what the fact was as to whether or not the defendant had taken charge of the work at the time plaintiff was injured. Ames v. D. J. Murray Mfg. Co. 114 Wis. 85, 89 N. W. 836. Defendant admitted that Patrick was its agent and had been in its employ for seven or eight years, but it denied that he had authority to take charge of the camp for it. The question presented, therefore, was the scope of Patrick’s authority as agent of the defendant, not the question of his being an agent for any purpose or at all. It is admitted that he was defendant’s agent. Being such, and being the only representative of the defendant at the camp, it follows that, if defendant did take charge of the work, Patrick had authority to prosecute it in the usual and customary manner. Ames v. D. J. Murray Mfg. Co., supra; Parr v. Northern E. Mfg. Co. 117 Wis. 278, 93 N. W. 1099; Arnold v. Nat. Bank, 126 — 100 — Wis. 362, 105 N. W. 828; Abrohams v. Revillon, 129 Wis. 235, 107 N. W. 656. In tbe Parr Case, supra, tbe court said: “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, — 101 — quite inexperienced in loading logs, and it is evident tbat tbe loading of logs, at least above tbe stakes of tbe car, requires tbe exercise of some skill, judgment, and care in order tbat tbe logs may lie as securely and firmly as practicable and properly tie in tbe load. Tbe jury evidently thought be lacked this skill or judgment, or both, and found him incompetent. We cannot say tbat such finding is not supported by tbe evidence. 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 — 102 — to sign any paper, that Patrick' did not offer him the Mech-ling contract, or any contract, as a condition of his signing any paper, but that Patrick had spoken to bim at one time about taking a contract to put in some other timber, and that that conversation had no reference whatever to this case and had nothing to do with it. Afterwards plaintiff called Charles Hunter as a witness and he was permitted, against defendant’s objection, to testify that LaSpronce had made the alleged statement to him. Later the defendant recalled Patrick and offered to prove just what statements he had made to LaSpronce and what the facts were with reference to the conversation between him and LaSpronce, but he was not permitted to testify. The court clearly erred in permitting Hunter to testify as to the alleged statement made to him by the witness LaSpronce. Even if the facts were as claimed by the witness Hunter, they would not tend to discredit the witness LaSpronce in the least, because there was no claim that LaSpronce signed such paper or took a contract under any agreement that he would claim that the defendant was not in charge of the work at the time plaintiff was injured. The only effect such testimony could have would be to discredit the witness Patrick. He had not been interrogated on the subject at all. The alleged statement of LaSpronce was not in conflict with any testimony that he had given in court, therefore it did not tend to contradict or impeach his evidence. So far as his testimony was concerned, it was entirely immaterial whether or not he made the statement or whether or not Patrick had made the statement to him, for the evidence is uncontradicted that he refused to comply with the suggestions or offers of Patrick, if any were made to him. A party asking a witness an immaterial question on cross-examination is bound by the answer given and it is error to permit the witness to be impeached relative thereto. Crawford v. Christian, 102 Wis. 51, 78 N. W. 406; Jones, Ev. (2d ed.) § 827 (827, 828). The effect of Hunter’s evidence, how — 103 — •ever, if believed, was to directly impeach and discredit tbe witness Patrick in a very material respect. If tbe jury believed Hunter’s testimony, they might come to tbe conclusion that Patrick was guilty of an attempt to suborn a witness for the defendant, and that be was therefore unworthy of belief as to any matter in dispute between tbe parties. Tbe prejudicial effect of such evidence becomes more apparent when it appears, as tbe fact was, that the only testimony in tbe case to show that plaintiff complained to Patrick that tbe loáder Skalski was incompetent was the testimony of tbe plaintiff himself, and this testimony tbe witness Patrick flatly contradicted. Tbe jury may well have come to the conclusion that plaintiff, and not Patrick, was to be believed in this matter in dispute, because of tbe fact that Hunter’s testimony left Patrick impeached and discredited. Plaintiff was permitted to show an attempt on tbe part of Patrick to suborn a witness, ■but tbe defendant was not permitted to disprove such alleged attempt. Tbe ruling was in effect tbe same as permitting •only one party to introduce evidence as to a material fact in dispute. It was clearly prejudicial, and must result in a new trial. Tbe defendant’s case rested largely on tbe testimony of tbe witness Patrick, and entirely so upon tbe question as to whether or not plaintiff bad complained of Skalski’s incompetency as a loader and as to whether Patrick bad promised to hire another man in Skalski’s place as soon as possible. Any improper impeachment of so important a witness must be deemed prejudicial error. 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 — 104 — ness LaSpronce, but in fact to impeach the witness Patrick, and in refusing to permit the witness Patrick to testify in reply thereto, the judgment must be reversed and the cause-remanded for a new trial. By the Ooiurt. — Judgment reversed, and cause remanded, for a new trial. A motion for a rehearing was denied June 4, 1912.