Medley v. Trenton Investment Co.

236 N.W. 713, 205 Wis. 30, 76 A.L.R. 1250, 1931 Wisc. LEXIS 40
CourtWisconsin Supreme Court
DecidedMay 12, 1931
StatusPublished
Cited by21 cases

This text of 236 N.W. 713 (Medley v. Trenton Investment Co.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Medley v. Trenton Investment Co., 236 N.W. 713, 205 Wis. 30, 76 A.L.R. 1250, 1931 Wisc. LEXIS 40 (Wis. 1931).

Opinion

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.

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 [35]*35are reasonably necessary and proper to be done in order to carry into effect the main authority conferred. Mechem, Agency (2d ed.) § 715. This rule is fully recognized by this court. In Voell v. Klein, 184 Wis. 620, 200 N. W. 364, 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.

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 Comm. 180 Wis. 168, 192 N. W. 452; Kruse v. Weigand, 204 Wis. 195, 235 N. W. 426.

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 the broad, general principle is to the effect that a proprietor or principal contractor is not liable for the negligence of an independent contractor (Hackett v. Western Union Tel. Co. 80 Wis. 187, 49 N. W. 822; Kolb v. Hayes, 194 Wis. 40, [36]*36215 N. W. 578), the rule is subject to a well established exception, which has been stated as follows: “Where the performance of such contract in the ordinary mode of doing the work necessarily or naturally results in producing the defect or nuisance which causes the injury, then the employer is subject to the same liability to the injured party as the contractor.” Hackett v. Western Union Tel. Co. and Kolb v. Hayes, supra. In Wertheimer v. Saunders, 95 Wis. 573, 578, 70 N. W. 824, it was said: “Where the act undertaken, from its very character, is either a nuisance, or one dangerous to others, the one undertaking it is not released from responsibility to any one injured thereby, although he has entered into a contract with some one to perform it, and the injuries occurred through the negligence of the latter. Lasker Real Estate Asso. v. Hatcher (Tex. Civ. App.) 28 S. W. 404; Glickauf v. Maurer, 75 Ill. 289.”

As between owners and principal contractors and third persons, it seems clear, under our decisions, that the owner or principal contractor is not liable for the negligent acts of an independent contractor unless the act to be done or the work to be performed is inherently dangerous or naturally or necessarily creates the nuisance or the defect or necessarily or naturally results in injury. In Smith v. Milwaukee B. & T. Exchange, 91 Wis. 360, 64 N. W. 1041, a contractor negligently permitted a brick to fall resulting in injury to the plaintiff, but liability of the owner was denied on the ground that the falling of the brick was not “the necessary or natural result of any act which the contractors were employed to do.” In Kolb v. Hayes, supra, speaking of Carlson v. Stocking, 91 Wis. 432, 65 N. W. 58, it was said: “It cannot be argued that a contract to do ordinary earth excavating under a contract for sub-grading presents a situation where, by the act to be done under the contract, a nuisance or defect will naturally and necessarily be created.” In Kolb v. Hayes, supra, it was held that the [37]*37principal contractor was not liable for an injury resulting from blasting with dynamite done by an independent subcontractor, because the injury was not such as necessarily or naturally results from the doing of such work. This court held, in that case, that blasting with dynamite was not “inherently dangerous” and that “the consequences which the plaintiffs claim resulted from the blast are not such as necessarily or naturally result from doing of the work in a reasonably prudent and careful manner.”

All of the cases just cited, with the exception of the Wertheimer Case, involved situations arising between owners or principal contractors and third persons. In none of these cases did a relation exist in which the owner or principal contractor owed a special duty to the persons injured. In the case at bar the relation between the defendant and Mrs. Medley was that of landlord and tenant. In that situation it seems quite clear, under our decisions, that the defendant owed to her a special duty to use reasonable care to protect her from injury on introducing into the building a dangerous gas, for the purpose of ridding the Smith apartment of bedbugs, and that, although such work was done by an independent contractor, the defendant became liable for the performance of such work in an insufficient or negligent manner. Such, we believe, is the clear effect of the holding in Wertheimer v. Saunders, stipra. In that case the landlord undertook, through an independent contractor, to remove an old roof from a building occupied by the plaintiff as tenant and to construct a new roof thereon.

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Cite This Page — Counsel Stack

Bluebook (online)
236 N.W. 713, 205 Wis. 30, 76 A.L.R. 1250, 1931 Wisc. LEXIS 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/medley-v-trenton-investment-co-wis-1931.