The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919. Page: 189
xiv, 992 p. ; 23 cm.View a full description of this legislative document.
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SCHULTZ V. BROWN
This suit, brought by Brown against Schultz for damages for the
injury described, is based upon the charge that Heinz, when he com-
mitted the assault, was in the employ of Schultz, and was engaged in
furthering the business of his master. In a legal sense the charge takes
the form that the plaintiff, Brown, was injured by Heinz, a servant of
the defendant Schultz, while the servant was acting within the course
and scope of his employment.
[1-3] In 26 Cyc. 1533, under the title of "Master and Servant,"
and the subtitle of "Liability of the Master for Injuries to Third Per-
sons," there is a statement concerning the acts within the scope of
employment, with authorities cited in support of the text. The state-
ment is applicable to the question in controversy in this case. It is
there said:
"In determining whether a master is liable for the torts of his servants,
the most difficult question is whether the particular act or omission of the
servant, causing the injury for which the master is sought to be held liable,
was committed within the scope of the servant's employment; and this ques-
tion is in most cases one of fact, to be determined by the jury from the sur-
rounding facts and circumstances. The terms 'course of employment' and
'scope of the authority' are not susceptible of accurate definition. What acts
are within the scope of the employment can be determined by no fixed rule; the
authority from the master generally being gatherable from the surrounding
circumstances. An act is within the scope of a servant's employment, where
necessary to accomplish the purpose of his employment, and intended for that
purpose, although in excess of the powers actually conferred on the servant
by the master."
With respect to the course and scope of Heinz's employment, it is
not claimed that he was employed to assault Brown. The claim is
that the course and scope of his employment furnished the motive and
purpose of the assault, as distinguished from any personal or private
animosity of his own. The defendant, Schultz, was called as a wit-
ness for the plaintiff. He testified that Heinz-
"was there as a herder, sheep herder; he had no other duties than those of
sheep herder. The duties of a sheep herder are to herd the sheep, while they
are out on a range, and do his own cooking; he does not select the place
where he herds them; the camp tender or foreman does that for him."
Being called later as a witness in his own behalf, he testified:
"I had not given Heinz, who was herding for me, any instructions relative
to keeping other people's sheep, or Reed's sheep, or anybody's else sheep, off
that land. I always gave my instructions through the camp tender or foreman.
The camp tender was Mr. Cowins."
Mr. Cowins, called as a witness for the defendant, testified:
"The sheep herder has no duty relative to where he herds his sheep. It is
the camp tender's or boss' duty to instruct him where to herd the sheep. When
any dispute arises over range questions, grass, or over the mixing of sheep,
the sheep herder has no duty, only to put the sheep through the corral and
do as the camp tender tells him to."
But this witness, on cross-examination, testified:
"When I was away telephoning, and on other matters, Heinz had the herd-
ing of the sheep; the sheep moved around while they were herding and
grazing, and were under his control. Hie directs their place of herding when I
am away, and was on the 18th of October of last year."
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The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919., legislative document, 1919; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38827/m1/203/: accessed April 24, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.