Brabazon v. Joannes Bros. Co.

Decision Date06 June 1939
PartiesBRABAZON et ux. v. JOANNES BROS. CO. et al.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from a judgment of the Circuit Court for Brown County; Henry Graass, Judge.

Reversed.

Action brought by the plaintiffs, Alden Brabazon and Mildred Brabazon, his wife, against the defendants, Joannes Brothers Company and J. Lipsner, to recover on separate causes of action the damages which each of the plaintiffs sustained by reason of injury sustained by Mildred Brabazon as the result of inhaling the vapor of a fly spray mixture. The plaintiffs also alleged in their complaint that the defendants by their employes illegally and unlawfully operated an apparatus for vaporizing the mixture in a store owned by the plaintiffs, and caused excessive quantities of the vapor to fill the store and come in contact with Mildred Brabazon; and that the conduct of the defendants' employes was without plaintiffs' consent and against their orders, and constituted a trespass on plaintiffs' premises and an assault and battery upon Mildred Brabazon. Joannes Brothers Company filed an answer denying that it by its employes unlawfully and illegally caused quantities of vaporized fly spray to fill plaintiffs' store contrary to plaintiffs' orders, or that it otherwise committed a trespass therein; and also filed a cross-complaint against the defendant Lipsner, charging that a salesman in his employ demonstrated a fly spray to the plaintiffs on June 23, 1936, and if they suffered any injury as a result thereof, it was caused entirely and solely by the acts of Lipsner's employe; Joannes Brothers Company demanded judgment for recovery from J. Lipsner of the full amount of any judgment against it which might be awarded to the plaintiffs. Lipsner denied that he had any agent or employe as alleged in the complaint, or had any knowledge or information as to the matters alleged therein; and alleged that plaintiffs' injuries and damages, if any, resulted from the negligence of Mildred Brabazon. On the trial the jury returned a special verdict upon which the court, on motions after verdict, ordered judgment for the plaintiffs' recovery of their damages from both defendants; and both of them appealed from that judgment.North, Bie, Duquaine, Welsh & Trowbridge, of Green Bay, and Bendinger, Hayes, Kluwin & Schlosser, of Milwaukee, for appellants.

Kaftan, Rahr & Kaftan, of Green Bay, for respondents.

FRITZ, Justice.

The defendants, J. Lipsner and Joannes Brothers Company, appeal from a judgment against them for the recovery of damages sustained by each of the plaintiffs as the result of injury to Mildred Brabazon on June 23, 1936, by her inhalation of the vapor of a mixture which contained pyrethrum to which she was allergic. The mixture was made by the Tanglefoot Company for the purpose of killing flies. It was used in connection with water in a machine called a difusor to generate steam, which was forced out through a nozzle so as to cause it to float in the air and kill insects. Lipsner had the sale as a broker of the mixture in a number of counties in Wisconsin and Michigan, and he received a commission on every gallon sold there, but he did not sell the difusor machines. Joannes Brothers Company, a wholesale grocery house located at Green Bay, purchased difuso from Lipsner, and the difusor machines directly from the factory and resold both to its trade. Andrew Kay was a salesman in the employment of the Joannes Brothers Company. He called regularly weekly on its customers, including the plaintiffs. Several days before June 23, 1936, Lipsner, accompanied by Frank Dicker, attended a meeting of the salesmen of Joannes Brothers Company at its office in Green Bay to promote the sale of difuso. Lipsner said that Dicker, who was a specialty man, would come and assist salesmen in pushing the sales of difuso, and it was arranged that during the following week Dicker would call with Kay on customers of the Joannes Brothers Company. Dicker's work as a specialty man was to introduce the article which was to be sold to the retailer by explaining and demonstrating to him the principles thereof and how to use it. At times he traveled with a jobber's salesman, and taught him how to sell in the future whatever item he had to sell. Whenever a specialty man took an order from a retailer, he would make out the order in the name of whatever wholesaler that particular retailer did business with. He had the same arrangement as Lipsner had with the Tanglefoot Company; and he acted as a subagent for Lipsner, who made the arrangements with Joannes Brothers Company for Dicker to go up and work with that company's salesman. Dicker was not paid by Joannes Brothers Company. He got the difference between the price that Lipsner made to him for difusors and the price he sold them at; and when Joannes Brothers Company ordered difuso, Dicker would get a commission on every sale. He furnished his own car, paid his own expensesand determined what hours he would call on parties within the territory assigned to him. On June 23, 1936, Dicker and Kay went to plaintiffs' store in a car which belonged to Joannes Brothers Company. Kay introduced Dicker to Alden Brabazon, and Dicker told him about difuso, the use of the difusor, and how it worked. There is a conflict in the testimony as to the conversation, and in what portion of the store it took place. According to the plaintiffs' testimony it took place in the portion of the store which was to the front of a partition, extending part way to the ceiling, that set off a nine feet deep office space at the rear of the store. Mildred Brabazon was waiting on customers in the front part of the store while Dicker was speaking to her husband. Alden Brabazon testified that when Dicker mentioned the price, including the cost of the difusor, Brabazon replied that the price was too much for flies and he was not interested; and that he then waited on customers. Dicker testified that he saw the possibility of a sale, and so he asked Alden Brabazon if he would like a demonstration, which would only take a few minutes; that Alden Brabazon said all right, and so Dicker asked him where they could connect the machine; that Alden Brabazon said the only place would be in the rear; that Dicker, Kay and Alden Brabazon then went into the rear room; that Louis Barres, the proprietor of an adjoining meat market, came in through a rear door and joined them; that it takes one or two minutes to get the machine in operation, as the water has to boil and create steam; that, while it was working and throwing out this mist, and while he and Kay and Alden Brabazon were standing there, Mildred Brabazon came into the room and said to shut off the machine, that she could not stand it; that Dicker immediately shut it off, and Mildred Brabazon went through to the rear and out the side door and became very sick. On the other hand, testimony introduced on behalf of the plaintiffs was to the effect that there was no conversation between Dicker and Alden Brabazon in relation to making a demonstration; that the latter did not tell Dicker that it was all right to make the demonstration, and go into the rear room with Dicker and there watch him plug the electric cord into an outlet and then vaporize the mixture; that Louis Barres entered the rear room through a door in the rear, and Dicker and Kay spoke to him about difuso and asked whether they could demonstrate it in his shop, and they then said they might just as well do so where they were; that Dicker looked for an electric outlet and connected the difusor by an electric cord to a plug in the office beyond the partition; that when the liquid began to boil and the mist began to spread, Dicker said he forgot to add water, and then got some in a lavatory and added it; that Mildred Brabazon became aware of the presence of fly spray in the store by reason of a customer's acts and the smell of the fly spray, and then immediately started for the back of the store; that Alden Brabazon also saw it, but as he noticed her on her way to stop it he left the stopping thereof to her; that, when she got into the thick mist in the rear room, all she could do was to open her mouth to order a stop to the proceeding, and when she inhaled some of the vapor it made her very sick and she collapsed.

At the conclusion of the testimony the parties agreed that there was a question of law for the court as to whether Lipsner and the Joannes Brothers Company were engaged in a joint adventure; and in answer to two questions submitted to the jury (in addition to questions as to damages) the jury found as follows:

“1. Did the plaintiff, Mildred Brabazon, sustain an injury on June 23rd, 1936, by the inhaling of difuso spray, which had been liberated by the salesman Frank Dicker? Answer: Yes.

“2. Did the plaintiff Alden Brabazon give his permission and consent to a demonstration of spraying difuso, from the difusor? Answer: No.”

Upon motions after verdict the court concluded that Lipsner, Dicker and the Joannes Brothers Company were engaged in a joint enterprise, and the court ordered judgment upon the verdict for the plaintiffs' recovery from the defendants of the damages assessed by the jury.

The plaintiffs contend that the judgment was warranted by the evidence because it established that Dicker and Kay participated in making a demonstration of the fly spray mixture with the use of the difusor; that their acts were unlawful because there was no implied license to demonstrate, and therefore their acts constituted trespass, and assault and battery, from which liability flows; and that Joannes Brothers Company and Lipsner were liable for those acts and the resulting damages, because Kay and Dicker were agents of Joannes Brothers Company, or, if Dicker was not an employe of the latter, then he was a joint adventurer with it and Lipsner, and as such all of them are liable for the acts of Dicker.

On the other hand, Lipsner and...

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14 cases
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