Medley v. Trenton Inv. Co.

• Decision Date: 12 May 1931
• Citation: 236 N.W. 713,205 Wis. 30
• Parties: MEDLEY v. TRENTON INV. CO.
• Court: Wisconsin Supreme Court

205 Wis. 30

236 N.W. 713

MEDLEY

v.TRENTON INV. CO.

Supreme Court of Wisconsin.

May 12, 1931.

Appeal from a judgment of the Circuit Court for Douglas County; Wm. R. Foley, Circuit Judge.

Action by James Medley against Trenton Investment Company. Judgment for plaintiff, and defendant appeals.--[By Editorial Staff.]

Affirmed.

This action was commenced on the 5th day of August, 1930, to recover damages for loss of the services of his deceased wife, Corinne Medley, and for medical expenses, etc., incurred during her last illness. This action was consolidated for purposes of trial with a similar action brought by Marguerita R. North, as Administratrix with the Will Annexed of Corinne Medley, Deceased, v. Trenton Inv. Co., 236 N. W. 717, to recover damages for pain and suffering of said deceased prior to her death. From a judgment entered on the 20th day of November, 1930, in favor of the plaintiff, for the sum of $115 and costs, the defendant appealed. By stipulation and consent this appeal and the appeal in Marguerita R. North, as administratrix, etc., against the defendant were heard together.

The defendant is a Wisconsin corporation. It is the owner of a three-story brick building located in the city of Superior. At the time the cause of action herein arose, the building was in charge of the McCabe Agency of Superior, as rental agent. On and before the 17th day of January, 1930, the first floor of the building was occupied by business concerns and the second and third floors, consisting of two apartments, were rented for residence purposes. The second floor apartment was occupied by Mrs. Smith and the third floor apartment by the Medleys. For about two years prior to January, 1930, one J. B. Bennett of Duluth, Minn., had been engaged in the business of exterminating bedbugs and other vermin. He operated under the name of “Twin Ports Exterminating Company.” Some time prior to January, 1930, a card advertising Bennett's business was left with the McCabe Agency. Early in January, 1930, the Smith apartment was found to be infested with bedbugs and the McCabe Agency wrote to the exterminating company requesting an interview. Mr. Bennett responded to such letter by personally calling at the McCabe Agency. Upon the trial a sharp dispute arose between Bennett and McCabe as to what took place at the time of this interview. Bennett testified that he was told by McCabe where the infested apartment was located; that he then went to the apartment, looked it over, and returned to the agency; that he reported to McCabe that the whole apartment was infested with bedbugs; and that McCabe thereupon told him to “go ahead.” McCabe, on the other hand, testified that he did no more than tell Bennett to look over the apartment and report back to him; that Bennett did not report back to him the results of his investigation at the apartment; and that he (McCabe) never authorized Bennett to go ahead. There is nothing in the evidence to prove that Bennett told McCabe of the particular method to be employed by him in performing the work of exterminating bedbugs. Several days thereafter, without any notice to McCabe, Bennett went to the Smith apartment and began the work of exterminating the bedbugs from the infested apartment. The method employed by him was first to close up all cracks and openings around the doors and windows so as to render the apartment air tight and then to fill the rooms with hydrocyanic gas which he then and there generated. The exit door was then closed, the cracks stuffed with wet paper, and the apartment left alone for a number of hours. On the day he performed the work at the Smith apartment, no notice or warning was given to any of the Medleys who occupied the apartment on the third floor immediately above the Smith apartment. Shortly after the gas began to generate, some of it evidently escaped into the Medley apartment and caused Mrs. Medley to become nauseated and to cough violently and continuously for several hours. Mrs. Medley, prior to the day in question, had suffered considerably from heart trouble. During the afternoon of that day, while continuing to cough violently, she suffered a paralytic stroke which, according to the doctor's testimony, was caused by her violent coughing. She never recovered from the stroke and died about a week later.

The jury returned a special verdict which found that McCabe directed Bennett to exterminate the bedbugs in the Smith apartment; that in using the gas in the Smith apartment Bennett failed to exercise ordinary care to prevent injury from said gas to persons who might be in the Medley apartment above; that the sickness and death of Mrs. Medley was caused by gas escaping from the Smith apartment; that the sickness and death of Mrs. Medley was a natural and probable result of the failure on the part of Bennett to exercise ordinary care in using the gas; that Bennett ought to have foreseen that injury or damage to another might probably follow from such failure to exercise ordinary care in using the gas; and that the damages sustained by the plaintiff were $400. After the coming in of the verdict, the defendant moved for judgment notwithstanding the verdict, to change the answers of the jury, to reduce the amount of the damages, and, in the alternative, for a new trial, all of which motions were denied on condition that the plaintiff elect to take judgment for the sum of $115. The plaintiff elected so to take judgment, and judgment was accordingly entered.

Hanitch, Hartley, Johnson & Fritschler, of Superior, for appellant.

Curran & Sher, of Superior, for respondent.

NELSON, J.

The defendant earnestly contends that the court erred in denying its motions for a directed verdict, for judgment notwithstanding the verdict, to change the answers of the jury and for a new trial. The denial of defendant's motion for a directed verdict and for judgment notwithstanding the verdict may be considered together. Defendant's contentions are based upon the following propositions: (1) The defendant is not liable for the negligence of Bennett because McCabe had no authority to contract with him to do the work of exterminating bedbugs in the Smith apartment. (2) Bennett, in any event, was an independent contractor, and the defendant is not liable for his negligence. (3) The performance of the work of exterminating bedbugs as ordinarily done is not so inherently dangerous as necessarily and naturally to result in injury to others.

[1][2] We do not consider defendant's first proposition sound. While it is true that McCabe was not expressly authorized to employ any one to exterminate bedbugs from defendant's building, we think that, as defendant's rental agent, he was impliedly authorized so to do. McCabe had express authority to rent defendant's building, which included the Smith apartment, and we think he had the implied authority to do such things as were reasonably necessary and proper, either to obtain tenants or to retain those already in the building. We entertain no doubt that a rental agent has implied authority to hire people to do such simple and inexpensive things as cleaning the premises, making them attractive and habitable by destroying vermin therein, or making small and necessary repairs to the premises. It seems to be well settled that every delegation of authority, whether general or special, carries with it implied authority to do all of those acts naturally and ordinarily done in such cases which are reasonably necessary and proper to be done in order to carry into effect the main authority conferred. Meachem on Agency (2d Ed.) § 715. This rule is fully recognized by this court. In Voell v. Klein, 184 Wis. 620, 200 N. W. 364, 366, it was said: “ ‘The creation of an agency carries with it the usual and appropriate means of accomplishing its object, and clothes the agent with such authority as is proper and necessary to effectuate its purposes.’ ”

So we conclude that the court did not err in denying defendant's motion for a directed verdict for the reason that McCabe had no authority to employ Bennett.

[3] As to defendant's second proposition, that Bennett was an independent contractor, we conclude, after carefully considering the evidence and the decisions of this court, that such was undoubtedly his relation to the defendant. Bennett was a resident of the state of Minnesota and was doing business under the name of “Twin Ports Exterminating Company.” His business was clearly of a nature requiring special knowledge and skill. McCabe did not know of the particular manner in which the work was to be performed and very clearly did not retain any right to control the details in respect to the performance of the work. Under the decisions of this court it seems clear that Bennett was an independent contractor. Since the subject of independent contractor has been so fully and carefully considered by this court in recent decisions, we deem it unnecessary further to discuss the subject. Weyauwega v. Industrial Commission, 180 Wis. 168, 192 N. W. 452;Kruse v. Weigand (Wis.) 235 N. W. 426.

[4][5] But it does not follow, because the relation between Bennett and the defendant was that of independent contractor and employer, that the defendant may not be liable. While...