Kuehn v. City of Milwaukee

• Decision Date: 28 January 1896
• Citation: 92 Wis. 263,65 N.W. 1030
• Parties: KUEHN v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

92 Wis. 263

65 N.W. 1030

KUEHN

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Jan. 28, 1896.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Frederick Kuehn against the city of Milwaukee for damages to his nets by garbage thrown in the lake in which they were set. From an order striking a demurrer to the complaint, defendant appeals. Reversed.

The plaintiff is a fisherman at Milwaukee. He sets his nets in Lake Michigan, at a distance of some 10 miles from the city, but within the territorial limits of the city. His nets, when set, extend a distance of about 5 miles, and are buoyed to the surface by wooden balls and floats. The nets are of considerable value. He has carried on this business at substantially the same place during the last 30 years. The commissioners of public works of the defendant city contracted with one Richardson to carry all the garbage and refuse collected within the city to some point in Lake Michigan not less than 15 miles from the city, and there dump it into the lake. On two occasions the garbage so dumped by the contractor or his servants, into the lake, was carried upon and into the plaintiff's nets, by the ordinary currents and movement of the waters of the lake, whereby the nets were damaged. The action is brought against the city to recover such damages to the nets. The city demurred to the complaint. The plaintiff moved to strike out the demurrer as frivolous. The motion was granted. The demurrer was stricken out, and the city appeals.Charles H. Hamilton and Ernest Bruncken, for appellant.

George E. Sutherland, for respondent.

NEWMAN, J. (after stating the facts).

On behalf of the city it is urged that the complaint did not state facts sufficient to constitute a cause of action against it, for the recovery of the plaintiff's damages to his nets, because (1) it was the work of an independent contractor which caused his damages; and (2) his damages resulted from the operations of the commissioners of public works, while engaged in the performance of duty owed to the general public, as distinguished from strictly corporate duty. It requires no citation of authorities to show that, if the act which caused the damages was the work of an independent contractor, the city is not liable. Whether the person whose act caused the damages was, in legal contemplation, an independent contractor, is sometimes debatable on the facts. The test is, had the defendant the right to control the conduct of the person doing the work, as respects the mode and manner of doing it, in the particular complained of? Harper v. Milwaukee, 30 Wis. 365; 2 Thomp. Neg. p. 892, § 12; Id. p. 909, § 35. If the defendant had such right of control, it is liable, if the act or omission was such as to create liability. If it had no such right of control, the doctrine of respondeat superior does not apply. This rule is subject to one exception. Where the performance of the contract, in the ordinary mode, necessarily or naturally results in the injury complained of, the rule does not apply. In that case the party contracting for the mischievous work to be done is liable for its necessary or natural consequences. But Lake Michigan is a wide place. The dumping ground was large. The contractor was unrestrained...