Hupfer v. Nat'l Distilling Co.

• Decision Date: 22 April 1902
• Citation: 90 N.W. 191,114 Wis. 279
• Parties: HUPFER v. NATIONAL DISTILLING CO.
• Court: Wisconsin Supreme Court

114 Wis. 279

90 N.W. 191

HUPFER

v.NATIONAL DISTILLING CO.

Supreme Court of Wisconsin.

April 22, 1902.

Appeal from superior court, Milwaukee county; John C. Ludwig, Judge.

Action by George Hupfer, administrator, etc., against the National Distilling Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This is an action to recover damages for negligently causing the death of the plaintiff's intestate, Simon Hupfer, September 13, 1899. Aside from the formal parts, the complaint alleges, in effect, that on the day named Simon came to the defendant's distillery, as he had for some time been accustomed to do, for the purpose of purchasing and receiving slops for his cows, which slops were contained in a large circular tank about 16 feet in diameter, and raised about 6 feet above the ground, and drawn therefrom by a faucet at the bottom of the tank; that Simon drove his wagon under and by the side of the tank for the purpose of so filling his wagon with such slops; that without his knowledge or any warning to him, and through the carelessness and negligence of the defendant, the hoops which held the tank together had become rusted and weakened, so that the tank broke, and the contents thereof were precipitated upon Simon, scalding him in such a dangerous and shocking manner that he died about three hours afterwards. The answer consists of admissions, denials, and counter allegations, to the effect that Simon refused to allow the defendant's employés to stir the slops in the tank, but insisted upon being present at the tank and stirring the slops therein himself, and by his doing so his own carelessness and negligence contributed to his injury and death. At the close of the trial the jury returned a special verdict, to the effect (1) that Simon Hupfer received injuries by the bursting of the defendant's slop vat, September 13, 1899, from which he died; (2) that the hoops on the vat at the time of the accident were rusted, so as to be defective and unfit for the purpose for which they were used; (3) that the defendant did not know of such defective condition of the hoops prior to the accident; (4) that the defendant in the exercise of ordinary care ought to have known of such defective condition of the hoops prior to the accident; (5) that such defective condition of the hoops was the proximate cause of the injury; (6) that September 13, 1899, it was a long-established custom for defendant's customers, desiring to purchase feed to be delivered from the vat in question, to stir the feed for themselves, if they desired to do so; (7) that such custom was known to, and acquiesced in by, the defendant; (8) that the defendant's customers, prior to the accident, did know that the defendant had provided a person whose duty it was to stir up the slop in the vat and deliver the same to the customers of the defendant; (9) that the deceased, prior to the accident, did know that the defendant had made it the duty of John Dardell to stir up the slop in the vat and deliver the same to the customers of the defendant; (10) that the defendant, prior to the accident, did repeatedly suffer the deceased to step upon the back platform and stir up the slop, and did suffer the deceased to do so because it feared to lose the custom of the deceased if it should forbid him; (11) that the deceased, in the exercise of ordinary care, ought not to have known of such defective condition of the hoops prior to the accident; (12) that the deceased was not guilty of a want of ordinary care which proximately contributed to the injury; (13) that they assessed the plaintiff's damages at $1,000. From the judgment entered thereon for the amount stated, the defendant brings this appeal.

Bardeen and Marshall, JJ., dissenting in part.

This is an action to recover damages for negligently causing theAT O'Connor, Schmitz & Wild, for appellant.

Lindley Collins and Joseph B. Doe, for respondent.

CASSODAY, C. J. (after stating the facts).

It is contended that the deceased was, at the time and place of the injury, at most, a mere licensee, to whom the defendant owed no duty. It is true that the defendant had in its employ at the time one John Dardell, whose special duty, among other things, was to stir up the slop in the vat and deliver the same to the defendant's customers. By the eighth and ninth findings the jury found that prior to the accident the deceased and the defendant's other customers knew that such were the duties of John Dardell. But by the sixth, seventh, and tenth findings, the jury also found that at the time of the accident it had long been an established custom for the defendant's customers, desiring to purchase such slops, to stir the same for themselves, if they desired to do so; and that such custom was known to and acquiesced in by the defendant; and that prior to the accident the defendant repeatedly suffered the deceased to step upon the back platform and stir up the slop, because it feared to lose his custom if he should be forbidden. John Dardell testified to the effect that he told the defendant's secretary that if some of the customers were not allowed to stir the slops themselves such customers would not take them; that the secretary told him not to drive customers away, but that he would rather he would stir the slops himself; that he had known the deceased for three years; that in the winter he came for slops almost every day, but seldom in the summer; that he often told the deceased that his duties required him to stir the slops, but that the deceased always stirred the slops himself; that by doing so he would get the thick slop, while other customers, who did not stir it themselves, would get thinner slop; that he knew that the deceased would not take the slop unless he stirred it himself, and so he let him stir the slop and fill his wagon rather than lose him as a customer; and that he regarded that as business. Upon such findings and testimony, can we hold that the deceased was a mere licensee within the authorities? Townley v. Railway Co., 53 Wis. 626, 11 N. W. 55;Cahill v. Layton, 57 Wis. 606, 617, 16 N. W. 1, 46 Am. Rep. 46;Truax v. Railway Co., 83 Wis. 547, 53 N. W. 842;Johnson v. Transfer Co., 86 Wis. 64, 56 N. W. 161;Mason v. Railway Co., 89 Wis. 151, 61 N. W. 300;Gorr v. Mittlestaedt, 96 Wis. 298, 71 N. W. 656. In one of the elementary works cited by counsel for the defendant, the rule applicable is stated thus: “If a person enters upon premises on business to be transacted with the owner or occupant thereof, or by the procurement of the owner or occupant, and, being himself in the exercise of due care, is injured by reason of the unsafe condition of the premises or the approaches thereto, such unsafe condition being known, or such as ought to have been known, to the owner or occupant, the latter will be answerable in damages for such injuries.” Buswell, Pers. Inj. § 66, citing numerous cases. Among the cases cited in support of the proposition are the following: Donaldson v. Wilson, 60 Mich. 86, 26 N. W. 842, 1 Am. St. Rep. 487;Samuelson v. Mining Co., 49 Mich. 164, 13 N. W. 499, 43 Am. Rep. 456;Carleton v. Steel Co., 99 Mass. 216;Bennett v. Railroad Co., 102 U. S. 577, 584, 585, 26 L. Ed. 235, 238. In the first of these cases it was held that “a landowner is liable to respond in damages to one who, using due care, comes upon his premises at his invitation or inducement, express or implied, on any business to be transacted with or permitted by him, for injuries sustained by reason of the unsafe condition of such premises, known to him, and which he has suffered negligently to exist, but of which the injured party has no knowledge or notice.” In the last it is said, quoting from an author, that “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.” Similar views are expressed in Mr. Thompson's late Commentaries on the Law of Negligence (volume 1, § 968), citing numerous cases in support of the rule. We must hold that, under the findings of the jury, the deceased cannot be regarded as a mere licensee, but that he was there on business for the mutual benefit of himself and the defendant; or, in other words, by invitation. There is evidence tending to support such findings.

2. By the third and fourth findings the jury found, in effect, that the defendant did not know of the defective condition of the hoops prior to the accident, but that it ought to have known of such defect prior to the accident. It is claimed that the evidence is insufficient to support this last finding. It appears that the tank was constructed in 1894; that the average life of such a tank used as that was without necessitating repairs was 10 years or more; and that that tank was inspected and found in good condition in June or July prior to the accident. Of course, if the defect was latent and unknown to the defendant, and undiscoverable by the exercise of ordinary care on the part of the defendant, then there would be no liability. Smith v. Railway Co., 42 Wis. 520;Morrison v. Construction Co., 44 Wis. 405, 28 Am. Rep. 599;Spille v. Iron Co., 105 Wis. 340, 81 N. W. 397. But if the photographs were properly admissible in evidence, then there was evidence tending to prove that some of the hoops on the tank were, at the time of the injury, rusted to such an extent as to destroy or partially destroy the efficiency of such hoops, and that such condition could readily have been discovered by the exercise of ordinary care on the part of the defendant.

3. The defendant's secretary testified to the effect that the photographs correctly represent the location of the tank, the office building, the roadway, and the plant. The photographer testified to the effect that Exhibit C was a correct representation of the hoops as they were September 18, 1899,--five days after...