Campbell v. Sutliff

• Decision Date: 20 June 1927
• Parties: CAMPBELL v. SUTLIFF ET AL.
• Court: Wisconsin Supreme Court

193 Wis. 370

214 N.W. 374

CAMPBELL

v.SUTLIFF ET AL.

Supreme Court of Wisconsin.

June 20, 1927.

Appeal from Circuit Court, Oneida County; A. H. Reid, Judge.

Action by Hugh Campbell against S. D. Sutliff and another. Judgment for plaintiff, and the defendant named appeals. Affirmed.--[By Editorial Staff.]

Action by Hugh Campbell against S. D. Sutliff and Gordon Morgan to recover for personal injuries sustained in the garage of defendant Morgan. From judgment against defendant Sutliff, he appealed.

Plaintiff was a traveling salesman, who had for a period of years regularly stopped at a hotel in Rhinelander, Wis., whose rear door was directly back of, and near to, the rear door of the garage of defendant Morgan. Plaintiff traveled by automobile, and always kept his automobile in the Morgan garage. Plaintiff and other guests of the hotel, as well as the manager of the hotel, customarily went to the Morgan garage to get their cars by going through the rear door of the garage. The rear door of the garage opened into the repair shop. In front of this repair shop was the garage proper, which was used for the storage of cars.

The accident occurred on a dark November morning. The employees of defendant Sutliff, a dealer in coal, were putting coal in the basement of the garage through a hole in the floor of the repair shop. The plaintiff stepped into this open coal hole, and was injured. The jury found that the employees of the garage did not fail to exercise ordinary care in permitting the coal hole to be open and unguarded, and that the employees of Sutliff failed to exercise ordinary care for the safety of patrons of the Morgan garage by leaving the coal hole open and unguarded, and that such negligence was the proximate cause of plaintiff's injury.Bird, Smith, Okoneski & Puchner, of Wausau, for appellant.

A. J. O'Melia, of Rhinelander, for respondent.

STEVENS, J.

[1] 1. The case was tried upon the theory that plaintiff was an invitee and entitled to protection as such. Appellant contends that plaintiff was a mere licensee, who was obliged to take the premises as he found them, and that appellant owed him no duty except that of refraining from active negligence, rendering the premises dangerous.

“The principle appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it.” Hupfer v. National D. Co., 114 Wis. 279, 284, 90 N. W. 191, 193. Here there was the common interest or mutual advantage which distinguishes an invitee from a mere licensee. Greenfield v. Miller, 173 Wis. 184, 188, 180 N. W. 834, 12 A. L. R. 982;Dowd v. Chicago, M. & St. P. R. Co., 84 Wis. 105, 113, 54 N. W. 24, 20 L. R. A. 527, 36 Am. St. Rep. 917. While the plaintiff had no business in the repair shop, he had entered the garage in a way customarily used by guests at the hotel who stored their cars in the garage for the purpose of procuring his car, which was stored in the front part of the garage. He was as clearly an invitee as is a customer who enters a store to purchase merchandise. Lehman v. Amsterdam Coffee Co., 146 Wis. 213, 217, 131 N. W. 362.

[2][3] 2. Appellant Sutliff was an independent contractor, who had the right to control the details of the work of delivering coal. He was responsible to the garage owner only for the result--the delivery of the coal. The garage owner was not liable for the negligence of appellant's employees. It was the duty of the appellant as an independent contractor to leave the premises in as safe condition as they were when he found them. The verdict indicates that the jury found that the employees of appellant Sutliff opened the coal hole, and left it open and unguarded. The evidence warrants such a finding. The failure of appellant's employees to leave the premises in as safe a condition as they found them constituted actionable negligence, which rendered appellant Sutliff liable to the plaintiff for injuries proximately caused by such negligence. Scott v. Curtis, 195 N. Y. 424, 88 N. E. 794, 40 L. R. A. (N. S.) 1147, 1153, 133 Am. St. Rep. 811.

[4] 3. The plaintiff testified that he could not distinguish objects on the floor of the repair shop before he stepped into the coal hole, and that he proceeded in practically utter darkness, facing the light of the partially open front doors of the garage. If he had been a mere licensee, who was obliged to take the premises as he found them, he might have been guilty of contributory negligence. But, as an invitee, plaintiff had a right to presume that the passageway was safe, and was not chargeable with knowledge of the open coal hole of which he had no notice. Lehman v. Amsterdam Coffee Co., 146 Wis. 213, 218, 131 N. W. 362. Therefore he cannot be held guilty of contributory negligence.

[5][6] 4. The plaintiff's compensation was paid in the form of a commission on all sales made by him. His expenses were paid, and he was given a drawing account of $350 a month, which sum was regularly paid to him during the period of his disability following the accident. He was also paid $125 under an accident policy. The appellant contends that the trial court erred in instructing the jury that, in assessing plaintiff's damages, they should wholly disregard the fact that he had received a payment under an accident insurance policy, and also the fact that his employer continued to pay his salary during the time that he was disabled. Appellant contends that plaintiff's damage was measured by the loss in wages or earnings which he actually sustained, and that plaintiff cannot be heard to claim that he sustained loss in wages or earnings because his employer continued to pay his regular wage or drawing account during all the time that he was disabled.

The position taken by appellant finds support in the decisions of the courts of some of the states, but it “seems to be the prevailing doctrine in this country that where the salary of an injured person is continued by his employer during the time of his inability to perform services, such payment is no ground for diminution of the damages to be paid by the one who has caused the injury.” Cunnien v. Superior Iron Works Co., 175 Wis. 172, 188, 184 N. W. 767, 772 (18 A. L. R. 667).

We see no reason why one whose acts have caused injury to another should reap the entire benefit that comes from the payment of wages made by an employer, either as a gratuity to a faithful employee or because such payments are required by contract. Such payments do not change the nature of the injury which the employee sustains through the wrongful acts of the tort-feasor. If either is to profit by the payments made by the employer, it should be the person who has been injured--not the one whose wrongful acts caused the injury. The extent of the liability of the wrongdoer is dependent upon the extent of the injuries inflicted by his wrongful act, not upon the question whether the employee receives wages during disability from his employer.

It is equally clear that the defendant is not entitled to have the damages reduced because the plaintiff had purchased and paid for the right to have indemnity in case he sustained accidental injuries. The sums paid for such insurance are in the nature of an investment, which, like other investments made by the plaintiff, ought not to inure to the benefit of the defendant. The only parties interested in such a contract of insurance are the plaintiff and the insurer. Gatzweiler v. Milwaukee E. R. & L. Co., 136 Wis. 34, 39, 116 N. W. 633, 18 L. R. A. (N. S.) 211, 128 Am. St. Rep. 1057, 16 Ann. Cas. 633.

The decisions of this court are in accord with the majority of the courts of the country in adopting the rule stated by the learned trial judge in his instructions to the jury. Gatzweiler v. Milwaukee E. R. & L. Co., 136 Wis. 34, 37-39, 116 N. W. 633, 18 L. R. A. (N. S.) 211, 128 Am. St. Rep. 1057, 16 Ann. Cas. 633;Cunnien v. Superior Iron Works Co., 175 Wis. 172, 188, 184 N. W. 767, 18 A. L. R. 667;Wasicek v. M. Carpenter Baking Co., 179 Wis. 274, 278, 191 N. W. 503.

[7] 5. The jury's answer to the question which required them to fix the amount of damages assessed for pain and suffering was “None.” The proof establishes without controversy that the plaintiff is entitled to recover damages for pain and suffering. The trial court was of the opinion that, had the jury not misunderstood its duty, it would have assessed “at least the sum of $50” as compensation for pain and suffering. The court therefore struck but the answer “None,” and inserted in lieu thereof the sum of $50 and entered a judgment which included this sum of $50 as damages.

[8] This judgment therefore presents the question whether such an order whereby damages are assessed by the court in a case triable by jury violates the constitutional mandate that “the right of trial by jury shall remain inviolate.” The right that is preserved by this constitutional provision is the right to trial by jury as it existed when the Constitution was adopted. State ex rel. Schumacher v. Markham, 160 Wis. 431, 436, 152 N. W. 161. The power of the court to set aside verdicts and to grant new trials on the ground that the jury had erred in assessing damages was firmly established before the formation of the United States, and therefore long before the Constitution of Wisconsin was adopted.

Early in the history of English procedure this right was exercised through the attaint of the jury whose verdict was questioned. This practice prevailed down to the time when the memorable decision of Chief Justive Vaughan in Bushell's Case, Vaughan, 135, 6 How. St. Tr. 999, put an end to the barbarous and excessive punishment that had been imposed upon jurors whose verdicts were attainted. In place of the attaint as a means of correcting erroneous verdicts came the practice of setting aside verdicts because of the misconduct of jurors, which was...