Smith v. Lederer

The following opinion was filed April 9, 1914: MaRShall, J. If a person who is a tenant of a portion of a building which is rented to several,- — to each a particular portion, — employs another to perform a casual service for him, impliedly inviting that other, in performing such serv [486] ice, to use an elevator furnished by the landlord to the tenants for tbeir common use and that of persons having occasion to visit or have to do with their respective holdings, the relations of master and servant do not exist between such person and such other in respect to such elevator nor the relation of carrier and passenger, but that of invitor and invitee. In case of a person employing another to perform a service for him, which involves an invitation to visit premises of which he is a tenant with others and to use an appliance in the performance of such service, as in this case, he owes to such person the duty of ordinary care. Where the appliance, in the circumstances stated, is furnished for the common use of several tenants, the landlord agreeing or assuming to keep it in repair, ordinary care on the part of the tenant does not include duty to make an expert examination of the machinery for the purpose of discovering defects, if there be any; he may rely on the obligation of the landlord to perform such duty, in the absence of a known breach of such obligation, or actual notice of want of repair or of facts sufficient to put one, so circumstanced, upon efficient inquiry. The foregoing is in harmony with the instruction which the learned circuit court gave to the jury, which he later considered was efficiently misleading. The exact thought which caused condemnation of the instruction does not clearly appear. The only expression of the trial judge which throws any light on the question, is the one to the effect that appellant Lederer owed to his invitee an active duty; that a casual inspection was not sufficient. The idea could not well have been, in using the term “casual inspection,” the mere seeing of those things which would ordinarily come under one’s observation by visiting the elevator and using it, because the evidence is pretty clear that something more was done. Lederer1s agent looked for some evidence that repairs had been made to the elevator, and he op [487] erated it, noting its performance in comparison with that before he gave notice that the appliance was out of order. From the manner the machine worked he made up his mind that suitable repairs had been made. ’ That was something more than a mere casual inspection, if more was required. The evidence shows the person who so passed judgment after the repair was competent therefor. What he did may well have been thought by the jury, such an inspection as a person of ordinary care would ordinarily make under the same or similar circumstances, though not answer to a “particular or technical inspection” as that term was used in the instruction. An inspection of such character would have required some one with competency of a reasonably skilled expert, to ascend to the region of the elevator machinery and examine for discoverable defects. The idea must have been that ordinary care, in the circumstances of Lederer, might or might not, in the judgment of the jury, require such an inspection. That was error. The degree of care which devolved on Lederer was correctly given in the instruction. As suggested by counsel for appellant, the instruction was taken- from Gager v. Stolle-Barndt L. Co. 149 Wis. 154, 135 N. W. 490. It was there given as an elementary principle. We affirm it. Otherwise every tenant in a building, equipped with an elevator, kept in repair by the proprietor for the common use of tenants, would be bound to exercise all the care of a proprietor in regard to the personal safety of any one using the appliance in serving him. By the same principle, if a person employed another to perform a casual service which involved a suggestion to engage a dray to convey freight from one place to another and accompany the drayman, such person would owe to such other the duty of making a careful technical inspection of the drayman’s equipment before permitting such other to subject himself to danger of personal injury by reason of any infirmity therein. That might extend to unsuitableness of the team or even the driver. These illustrations, [488] though somewhat extreme, are legitimate and show the absurdity of departing from the reasonable rule given in Gager v. Stolle-Barndt L. Co., supra. The foregoing is in harmony with Hasbrouck v. Armour & Co. 139 Wis. 357, 364, 121 N. W. 157; Muench v. Heinemann, 119 Wis. 441, 96 N. W. 800. Of course it was appellant’s duty to warn respondent Smith of any danger of which he knew, or ought to have known, but that has reference to what one actually knows, or ought to have known, by the exercise of ordinary care under the same or similar circumstances. The rule as to duty to keep in a reasonably safe condition, given and applied in Carter v. Rockford & I. R. Co. 147 Wis. 86, 132 N. W. 598, does not extend to such a situation as that in hand. DeWolf, as ’ indicated in the statement, did not appeal. The new trial, in form, was granted on his motion as well as plaintiff’s; but, in fact, all questions raised by him were decided against him. He is here, by a- brief, as respondent; but his real adversary is the plaintiff, not appellant Lederer. If the verdict be wrong upon any ground urged in! his behalf, no question in respect thereto entered into the decision appealed from, notwithstanding the form of the order. Therefore, it is considered judgment should be rendered' as indicated in the mandate. By the Court.- — The order appealed from is reversed, and the cause remanded for judgment on the verdict in favor of defendant Lederer against the plaintiff with costs and in favor of plaintiff against defendant DeWolf for the amount found by the jury with costs. Oosts are awarded in this court in appellant’s favor against both respondents. KeewiN, J., dissents. A motion for a rehearing was denied, with $25 costs, on June 17, 1914.