Baird v. Shipman

• Decision Date: 21 January 1890
• Citation: 132 Ill. 16,23 N.E. 384
• Parties: BAIRD et al. v. SHIPMAN.
• Court: Illinois Supreme Court

132 Ill. 16

23 N.E. 384

BAIRD et al.

v.SHIPMAN.¹

Supreme Court of Illinois.

Jan. 21, 1890.

Appeal from appellate court, first district.

Action by Elias Shipman, as administrator of Joseph Garnett, deceased, against Lyman Baird and Francis Bradley. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendants appeal.

L. H. Boutell, for appellants.

Cameron & Hughes, for appellee.

PER CURIAM.

The following opinion of the appellate court fully presents the question arising upon this record:

‘GARNETT, P. J. This is an appeal from a judgment for damages, founded on the alleged negligence of appellants, by which the death of Joseph Garnett, appellee's intestate, is said to have been caused. The place where the injury happened was in a barn situated on premises on Michigan avenue, in Chicago, belonging to Aaron C. Goodman, who was then, and for several years before had been, a resident of Hartford, Conn. Appellants were his agents for renting the premises during the years 1884 and 1885, and during both years were carrying on the real-estate business in Chicago. On the trial, evidence was given tending to show that they had in fact complete control of the premises, with the residence and barn thereon, repairing the same, in their discretion; and there was no proof that in such matters they received any directions from the owner. The property was rented by appellants to Emma R. Wheeler and A. R. Tillman from April 1, 1884, to April 30, 1885, and to Emma R. Wheeler from May 1, 1885, to April 30, 1886. Both leases were in writing, and by the terms of each lease the tenants covenanted to keep the premises in good repair. The tenant in the last lease rented the premises to Nellie E. Pierce, who occupied the same from April 28 to September, 1885. The evidence tends to prove that when the lease was made to Emma R. Wheeler the large carriage door to the barn was in a very insecure condition, and that appellants, through one Warner, the manager of their renting department, verbally agreed with Mrs. Wheeler to put the premises in thorough repair. Nothing was done to improve the condition of the door; and on June 12, 1885, while the deceased, an expressman by occupation, was engaged in delivering a load of kindling in the barn for one of the parties living in the house, the door, weighing about 400 pounds, fell from its fastenings, and injured him to such an extent that he died the next day.

‘Appellants make two points: (1) That the verdict is clearly against the weight of the evidence; (2) that they were the agents of the owner, (Goodman,) and liable to him only for any negligence attributable to them.

‘There is nothing more than the ordinary conflict of evidence found in such cases, presenting a question of fact for the jury; and the finding must be respected by this court, in deference to the well-settled rule.

‘The other point is not so easily disposed of. An agent is liable to his principal only for mere breach of his contract with his principal; but he must have due regard to the rights and safety of third persons. He cannot in all cases find shelter behind his principal. If, in the course of his agency he is intrusted with the operation of a dangerous machine, to guard himself from personal liability, he must use proper care in its management and supervision, so that others, in the use of ordinary care, will not suffer in life, limb, or property. Suydam v. Moore, 8 Barb. 358. Phelps v. Wait, 30 N. Y. 78. It is not his contract with the principal which exposes him to, or protects him from, liability to third persons, but his common-law obligation to so use that which he controls as not to injure another. That obligation is neither increased nor diminished by his entrance upon the duties of agency; nor can its breach be excused by the plea that his principal is chargeable. Delaney v. Rochereau, 34 La. Ann. 1123. If the agent once actually undertakes and enters upon the execution of a particular work, it is his duty to use reasonable care in the manner of executing it, so as not to cause any injury to third persons which may be the natural consequence of his acts; and he cannot escape this duty by abandoning its execution midway, and leaving things in a dangerous condition, by reason of his having so left them without proper safeguards. Osborne v. Morgan, 130 Mass. 102. A number of authorities charged the agent, in such cases, on the ground of misfeasance, as distinguished from nonfeasance. Mechem, in hiw work on Agency, § 572, says: ‘Some...