#### Cobb, Respondent, vs. Simon, Appellant.

*February 24*

March *14, 1905.*

*Master and servant: Liability for torts outside scope of employment.*

Where a floor walker in a store knew that a customer bad not stolen goods, but ialsely or by a trick made it appear that she had, and imprisoned and assaulted her in order to extort money from her, his employer is not liable for such acts, they being wholly outside the scope of the employment.'

Appeal from a judgment of tbe circuit court for Milwaukee county: LawbeNCe W. Halsey, Circuit Judge.

*Reversed.*

This record presents a third trial of tbe same case considered under tbe same title in 119 Wis. 597, 97 N. W. 276, where tbe facts axe sufficiently set forth. Upon tbe trial now under consideration there was complete and positive evidence by tbe plaintiff that she did not steal a bolt of lace and did not have any upon her person; also that, after leaving for tbe last time tbe lace counter, tbe floor walker, Saxe, bad fitted ■onto her a corset, thus involving tbe lifting of her arms and bis knowledge of tbe impossibility of her having bidden outside of her clothing any such parcel. Tbe jury returned the same verdict as before, except that they assessed compensatory damages at $2,000 and punitory damages at $500. Defendant moved to reverse tbe answer to tbe third question finding that tbe acts of Saxe were done within tbe scope of bis employment. Judgment was entered upon tbe verdict, from which tbe defendant appeals.

Eor tbe appellant there was a brief by *Kronshage & McGovern,*attorneys, and *Oscar M. Fritz,*of counsel, and oral argument by *Theodore Kronshage, Jr.*

Eor tbe respondent there was a brief by *D. T. Phalen,*attorney, and *Simon Gillen*and *B. A. Kehr,*of counsel, and oral argument by *Mr. Gillen.*

*468Dodge, J.

Upon tbe former trial it was declared tbat “if tbe servant knew no merchandise bad been stolen, but falsely or by a trick made it appear tbat tbe plaintiff bad tbe lace under ber aim, and imprisoned and assaulted ber in order to extort money from ber, tbe defendant would not be liable for any of his acts, because Saxe bad stepped aside from bis employment to commit a tort for bis own purposes and ends.” It was further concluded tbat, because there'was no positive statement from plaintiff or ber daughter tbat tbe former bad not taken and did not have upon ber person tbe bolt of lace produced by Saxe, tbe jury might have inferred that she did have it, and tbat Saxe might have so believed, and therefore was not perpetrating a fraudulent tort for his own purpose, but was seeking to promote bis employer’s interests. Tbe views then expressed are entirely conclusive of tbe present appeal, for it does now appear by tbe testimony of both plaintiff and ber daughter tbat no such bolt of lace as tbat pretended to have been taken from her by Saxe was upon plaintiff’s person; also tbat she bad been subjected to such an experiment by Saxe, in fitting a corset upon ber, tbat be must have known tbat she bad nothing of tbe sort in ber possession. This evidence is wholly undisputed, and supplies tbe certainty as to Saxe’s motive in tbe transaction which was lacking on tbe former trial. In deference to what we then declared, we must now bold tbat tbe evidence conclusively established tbat Saxe was acting wholly outside the scope of bis employment. Tbe court, upon the motion of tbe defendant, should have changed tbe answer to tbe third question from “Yes” to “No.” Upon such answer to tbe third question no judgment could result save one in favor of the defendant.

*By the Gourt.*— Judgment reversed, and cause remanded with directions to grant defendant’s motion to change from “Yes” to “No” tbe answer to tbe third question of tbe special verdict, and, upon tbe verdict so. changed, to render judgment in favor of tbe defendant.