Smith v. Pawlak

Mr. Presiding Justice Baker, delivered the opinion of the court. We think the question whether the plaintiff was guilty of contributory negligence was, upon the evidence, a question of fact upon which the verdict of the jury must be held conclusive. We also think that the jury might, from the evidence, properly find that the act of the elevator boy in sending the elevator cab or platform up while the doors leading to the elevator shaft were open and the shaft unguarded and unprotected, was an act of negligence which directly contributed to plaintiff’s injury. Wengler, the engineer of the building at the time of the accident, was first employed by the former owner and held his position after the sale to Perkins. Lie employed the elevator boys, but as defendants had authority to hire and discharge the engineer they must be held to have had authority to hire and discharge the elevator boys, and the question of their liability to the plaintiff for an injury caused by the negligence of an elevator boy, is to be decided as though the defendants had, as the agents of the owner of the building, hired such elevator boy. One of the grounds for the motion for a new trial was, that the verdict was contrary to the evidence, and the motion having been overruled and the overruling of the motion assigned for error here, the question whether the defendants, under the evidence, are liable for the negligence of the elevator boy, is brought before us for review. Hale v. Johnson, 80 Ill., 185. Appellee contends that they are so liable because they were agents for an undisclosed principal, and cite in support of such contention Morris v. Malone, 200 Ill., 132. The evidence in that case showed that Morris and Co., a copartnership, carried on a factory in their own name; that they employed plaintiff and that so far as the workmen employed in the factory and the public knew, the copartnership was carrying on the factory, and it was held that the copartnership was liable to the plaintiff, although in fact it may have been acting for an unknown principal. Here the building was rented to different tenants. The lease of Strauss Brothers, plaintiff’s employers, from the former owner for a floor of the building for the year 1903 was assigned by the lessor to Perkins, the purchaser of the building. There is in the record no evidence tending to show that the defendants leased any space in the building in their own name, or did any act indicating that they were the owners of the building, or were carrying on the building or the business of renting space therein, otherwise than as agents for the owner. We think that, under the evidence, it cannot be said, that the defendants were agents for an undisclosed principal, and for that reason responsible for the negligence of the elevator boy. Appellee further contends that the case of Baird v. Shipman, 132 Ill., 16, is conclusive upon the question of appellants’ liability for the negligence of the elevator boy. In that case the defendants were in charge and control of a building in Chicago, as the agents of a non-resident owner, as were the defendants in this case. They had substantially the same power and authority from the owner in respect to the management of the building that the defendants in this case had in respect to the management of the building under their control. They had authority to make ordinary repairs, as had the defendants in this case. The hangings of a barn door became out of repair, so that it was unsafe and dangerous to attempt to- open the door. While the premises were in that condition, defendants leased the same to Mrs. Wheeler. Plaintiff’s intestate attempted, by direction of Mrs. Wheeler, to open the door and it, by reason of the defective condition of the hangings, fell upon him and killed him and a judgment for the plaintiff against the defendants was affirmed. The fact that the defendants had control of the barn was a necessary element of the liability of the defendants in that case, for because of such control the law imposed upon them the duty to use reasonable care in respect to the barn to avoid injury to any person who should for a proper purpose attempt to enter it. • This duty was but the common law duty resting upon every man to so use that which he controls as not to injure another. This duty rested upon the defendants in this case in respect to the elevator in question which was provided by the owner for the use of all of the tenants in the building, and was under the control of the defendants as the agents of the owner. In the opinion in that case it was said: “When appellants rented the premises to Mrs. Wheeler in the dangerous condition shown by the evidence, they voluntarily set in motion an agency which in the ordinary and natural course of events would expose persons entering the bam to personal injury.” There was no “interruption of the causal relation between them and the injured man.” The distinction between the two cases is, that in Baird v. Shipman the defendants, by their wrongful act of leasing the barn when it was in a dangerous condition, voluntarily set in motion an agency which, in the ordinary course of events, and without interruption of the causal relation, caused the death of plaintiff’s intestate. In this case there is no claim that the defendants did anything or omitted anything in violation of the duty imposed upon them by law in respect to said elevator. Plaintiff’s injury was not caused by any act or omission of defendants, but by the negligence of the elevator boy. The only remaining question is, whether the defendants, by reason of having employed, through the engineer, the elevator boy, are responsible for his negligence. This question must be answered in the negative. The elevator boy was the servant of the owner of the building, not of the defendants. His duties were performed for the owner in the prosecution of the business of the owner, not for the defendants, nor in the prosecution of their business. In short, as was said in Bath v. Caton, 37 Mich., 199, where it was sought to hold Bath, the manager of a corporation, liable for the acts of employees of the corporation hired by him and under his control: “The requisite conditions to authorize the application of the doctrine of respondeat superior were not present. * * * There are cases which rest on peculiar grounds and are exceptional. The most important of them are maritime eases.” See also Kuhnert v. Angell, 10 N. Dak., 59; 84 N. W., 579; 5 Thompson on Meg., section 5772; 1 En. and Am. Eney. of law, 2nd Ed., 981; Stone v. Cartwright, 6 Term. Rep., 411; Story’s Agency, section 313; Lloyd’s Paley’s Agency, 402; Brown v. Lent, 20 Vt., 529. We think that there is in the record no evidence to support the finding that the defendants were guilty of negligence, and the judgment of the Superior Court will therefore be reversed with a finding of facts. Reversed.