Morrison v. MacLaren

• Decision Date: 04 May 1915
• Citation: 160 Wis. 621,152 N.W. 475
• Parties: MORRISON v. MACLAREN ET AL.
• Court: Wisconsin Supreme Court

160 Wis. 621

152 N.W. 475

MORRISON

v.MACLAREN ET AL.

Supreme Court of Wisconsin.

May 4, 1915.

Barnes, J., dissenting.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Action by Irene Morrison against William MacLaren and others and Grant U. Fisher and others. From a judgment against the last-named defendants, they appeal. Reversed and remanded, with directions to dismiss.

This is an action brought against the defendants, as members of the state board of agriculture, to recover for personal injuries sustained by the plaintiff while attending the state fair. It is alleged in the complaint that, as such board, it was the duty of the defendants to exercise sole control of the affairs of the department of agriculture and of state fairs, and make such by-laws, rules, and regulations in relation to the management of the business of such department and state fairs as should from time to time be determined; that in 1910, between the 12th and 16th of September, at West Allis, Milwaukee county, Wis., the defendants, as such board, held a fair, and that at such fair there were exhibited products of agriculture, dairying, horticulture, manufactures, and domestic arts, and that said defendants, as such board, provided in connection with such fair as a special attraction for patrons an exhibition of flying by an aeroplane, and that such fair and grounds were under the sole direction and control of the defendants, as such board; that said fair was widely advertised, and the public invited to attend the performances and the exhibition of flying by the aeroplane; that the defendants, as such board, made a contract with Wright Bros. for giving the exhibition; that by the terms of said contract it was provided that the defendants, as such board, were to furnish the infield of the race track free from obstructions, and to assume all liabilities to the general public resulting from accident occurring on the infield; that at such fair grounds there was a large grand stand, which faced the infield and two race tracks; that the defendants, without authority from said board, negligently took charge of, permitted, and directed that said aeroplane should be caused to rise, not from the infield, but from the one-mile track directly in front of the grand stand, which was exceedingly dangerous to those in attendance; that on the 16th of September, 1910, the plaintiff was in attendance at said fair, and paid the requisite fee for entrance, and also purchased a ticket for admission to the grand stand; that it was the duty of the defendants as such board and the defendants personally to furnish the public, including the plaintiff, with a safe place for viewing the exhibitions and attractions, and particularly the flight of the aeroplane, and to engage competent operators to guide it, and to take such suitable and sufficient precautions necessary to prevent plaintiff from being in a position of peril at such time and place of falling of said machine; that, contrary to the contract between said board and Wright Bros., and at the directionand permission of the defendants, said Wright Bros. attempted to give an exhibition flight in said aeroplane by causing it to rise from the one-mile track directly in front of the grand stand, which defendants well knew was dangerous to spectators and onlookers; that when said aeroplane had traveled only a short distance, suddenly because of lack of control over it, it was caused to descend in front of the grand stand, and upon the plaintiff, seriously injuring her.

The answer put in issue the material allegations of the complaint, after admitting that William MacLaren, Grant U. Fisher, C. H. Everett, George Wylie, George C. Cox, F. A. Cannon, George McKerrow, Charles L. Hill, John L. Herbst, James J. Nelson, Ed. Nordman, and L. E. Scott, together with David Wedgwood, constituted the board of agriculture of the state of Wisconsin by virtue of their appointment by the Governor of said state and due qualification. The answer also set up contributory negligence on the part of the plaintiff.

On the trial a verdict was directed in favor of all of the defendants except the appellants here.

The jury returned the following verdict:

“(1) Was it negligence to make the flight with the aeroplane from the place where it was attempted on September 16, 1910? Answer: Yes.

(2) If you answer the first question, ‘Yes,’ was such negligence the proximate cause of the plaintiff's injury? Answer: Yes.

(3) Did either of the defendants Fisher, Everett, Wylie, McKerrow, Nordman participate in the starting of the aeroplane on the race track? Answer: Yes.

(4) If you answer question 3, ‘Yes,’ then name those so participating. Answer: Grant U. Fisher, C. H. Everett, George Wylie, George McKerrow, Ed. Nordman.

(5) Did either of the defendants Fisher, Everett, Wylie, McKerrow, Nordman consent to the starting of the aeroplane on the race track? Answer: Yes.

(6) If you answer question 5, ‘Yes,’ then name those who so consented. Answer: Grant U. Fisher, C. H. Everett, George Wylie, George McKerrow, Ed. Nordman.

(7) If you have answered question No. 4 by naming some of the defendants, then answer: Ought said named defendants in the exercise of ordinary care, to have anticipated that because of the ascent of Hoxey from the race track some such injury as occurred to the plaintiff was likely to happen? Answer: Yes.

(8) If you have answered question No. 6 by naming some of the defendants, then answer: Ought the said defendants, in the exercise of ordinary care, to have anticipated that because of the ascent of Hoxey from the race track some such injury as occurred to the plaintiff was likely to happen? Answer: Yes.

(9) Was Hoxey's manner of controlling the aeroplane the sole proximate cause of the injury to the plaintiff? Answer: No.

(10) Was Hoxey's manner of controlling the aeroplane a proximate cause of the plaintiff's injury? Answer: No.

(11) Did Hoxey at the time he attempted to make the ascent handle his aeroplane in a negligent manner? Answer: No.

(12) If you answer the last question, ‘Yes,’ was his so handling the aeroplane a proximate cause of the plaintiff's injury? Answer:

(13) Did the plaintiff assume the risk attendant upon a flight of the aeroplane in the manner in which it occurred? Answer: No.

(14) Did any want of ordinary care upon the part of the plaintiff proximately contribute to her injury? Answer: No.

(15) What sum will reasonably compensate the plaintiff for the injuries she sustained? Answer: $3,000.”

Judgment was ordered on the verdict in favor of the plaintiff against the defendants appealing. Judgment was entered accordingly, from which this appeal was taken.

Glicksman, Gold & Corrigan, of Milwaukee (George B. Luhman, of Milwaukee, of counsel), for appellants.

J. O. Carbys and Houghton, Neelen & Houghton, all of Milwaukee, for respondent.

KERWIN, J. (after stating the facts as above).

Two main questions arise upon this appeal: (1) Whether the board is liable in its corporate capacity; and (2) whether appellants are individually liable.

[1] 1. The Wisconsin state board of agriculture is organized under sections 1456 to 1458b, Stats., inclusive. The object of the statute is the establishment of a department of agriculture, which is to be managed by this board, to promote the interests of agriculture, dairying, horticulture, manufacturing, and the domestic arts. The board is to be appointed by the Governor, and shall consist of one member from each congressional district and two from the state at large for a term of three years from the 1st day of January in the year of their appointment, and vacancies shall be filled by the Governor. The members of the board shall be allowed only their actual expenses, but, in case the members are chosen superintendents of departments, any such superintendent may be allowed not to exceed $5 per day and reasonable expenses while necessarily engaged in such work; the time to be devoted to such services to be fixed by majority vote of the board. The statute further provides for the holding of an annual meeting, the election of a president and vice president and some person not a member as secretary, and that the state treasurer shall be ex officio treasurer of the board; that the board may occupy such rooms in the Capitol as may be assigned for that purpose by the superintendent of public property, shall have sole control of the affairs of the department of agriculture and state fairs and fair grounds, and make such by-laws, rules, and regulations in relation to the management of the business and state fairs as they shall from time to time determine; that whatever money shall be appropriated or otherwise received by said board shall be paid to the state treasurer and disbursed by him.

It seems clear from the provisions of the statute that the board, when organized, is a corporate entity with power to contract, sue, and be sued. Tongue v. State Board of Agriculture, 55 Or. 61, 105 Pac. 250;Kent County Agricultural Society v. Houseman, 81 Mich. 609, 46 N. W. 15; 1 Dillon on Municipal Corporations (4th Ed.) p. 74, §§ 42, 43, 54. State ex rel. Priest v. Regents of the University of Wisconsin, 54 Wis. 159, 11 N. W. 472. It is a public corporation provided for by the statute and organized for purely public purposes as an arm or agency of the state to carry on a function impressed with a public purpose for the benefit of the people of the state. It is plain, therefore, that the board of agriculture, as a public corporation, made the contract for giving the aeroplane exhibition. The proceedings of the board and the contract made clearly show this.

[2] The giving of the state fair and exhibitions is done by the state through this agency in the discharge of a governmental function to promote the general welfare of the people of the whole state, and no private or local interests are subserved. No benefit is derived by the board in a proprietary capacity, but the...