231 Wis. 426 | Wis. | 1939
The defendants, J. Lipsner and Joannes Brothers Company appeal from a judgment against them for the recovery of damages sustained by each of the plaintiffs as the result of injury to Mildred Brabazon on June 23, 1936, by her inhalation of the vapor of a mixture which contained pyrethrum to which she was allergic. The mixture was made by the Tanglefoot Products Company for the purpose of killing flies. It was used in connection with water in a machine called a difusor to generate steam, which was forced out through a nozzle so as to cause it to float in the air and kill insects. Lipsner had the sale as a broker of the mixture in a number of counties in Wisconsin and Michigan, and he received a commission on every gallon sold there. But he did not sell the difusor machines. Joannes Brothers Company, a wholesale grocery house located at Green Bay, purchased difuso from Lipsner, and the difusor machines directly from the factory and resold both to its trade. Andrew Kay was a salesman in the employment of the Joannes Brothers Company. He called regularly weekly on its customers, including the plaintiffs. Several days before June 23, 1936, Lipsner, accompanied by Frank Dicker, attended a meeting of the salesmen of Joannes Brothers Company at its office in Green Bay to promote the sale of difuso. Lipsner said that Dicker, who was a specialty man, would c'ome and assist salesmen in pushing the sales of difuso, and it was arranged that during the following week Dicker would call with Kay on customers of the Joannes Brothers Company. Dicker’s work as a specialty man was to introduce the article which was to be sold to the retailer by explaining and demonstrating to him the principles thereof and how to use it. At times he traveled with a jobber’s salesman, and taught him how to sell in the
“1. Did the plaintiff, Mildred Brabazon, sustain an injury on June 23, 1936, by the inhaling of difuso spray, which had been liberated by the salesman Frank Dicker? Answer: Yes.
“2. Did the plaintiff Alden Brabazon give his permission and consent tO' a demonstration of spraying difuso, from the difusor ? Answer: NO'..”
, Upon motions after verdict the court concluded that Lips-ner, Dicker, and the Joannes Brothers Company were engaged in a joint enterprise, and the court ordered judgment upon the verdict for the plaintiffs’ recovery from the defendants of the damages assessed by the jury.
The plaintiffs contend that the judgment was warranted by the evidence because it established that Dicker and Kay participated in making a demonstration of the fly-spray mixture with the use of the difusor; that their acts were unlawful because there was no implied license to demonstrate, and therefore their acts constituted trespass, and assault and battery, from which liability flows; and that Joannes Brothers Company and Lipsner were liable for those acts and the resulting damages, because Kay and Dicker were agents of Joannes Brothers Company, or, if Dicker was not an employee of thé latter, then he was a joint adventurer with it and Lipsner, and as such all of them are liable for the acts of Dicker.
On the other hand, Lipsner and Joannes Brothers Company contend that neither is liable for Dicker’s acts because he was not an agent or employee of either of them, and they were not engaged in a joint enterprise; and Joannes Brothers Company also contends that if any unlawful act was com
Kay and Dicker, in entering the plaintiffs’ store for the purpose of transacting business with them in relation to articles useful in the conduct of the store, were business visitors, who, as such, were impliedly licensed to enter and be there for the purpose of offering articles and demonstrating the nature or operation thereof in the usual and customary manner, as long as reasonably necessary to accomplish those purposes or the plaintiffs permitted them to remain. 2 Restatement, Torts (Negligence), pp. 893, 898, §§ 330, 332; 1 Restatement, Torts (Intentional Harms), pp. 402, 403, 405, § 167; 2 Cooley, Torts (4th ed.), p. 238, § 248; Crouch v, Ringer, 110 Wash. 612, 188 Pac. 782; Breitenbach v. Trow-bridge, 64 Mich. 393, 397, 31 N. W. 402, 8 Am. St. Rep. 829; Woodman v. Howell, 45 Ill. 367, 92 Am. Dec. 221.
However, as is stated in 1 Restatement, Torts, p. 402, § 167, “an entry in pursuance of a consent given for a particular purpose is privileged only if the entry is for that purpose, and the privilege continues only for such time as is necessary to accomplish the purpose.” See also 2 Cooley, Torts (4th ed.), p. 257, § 252. And, as is stated in 1 Restatement, Torts, p. 412, § 171, “a consent is terminated when the actor knows or has reason to know that the possessor is no longer willing that the actor shall enter or remain on the land. A consent is so terminated when the actor knows that the possessor has done an act which is necessarily
“after explaining about the working principle I asked him [Dicker] about the cost of the article. He said it was around $16. I said it was too much for flies. At that time Mrs. Brabazon called me, told me to come over and help her. I don’t remember whether or not at any time he or Mr. Kay asked to be allowed to plug this apparatus in and demonstrate, it. Pie didn’t ask me. I don’t remember whether there was any talk about whether it should be demonstrated or not. I don’t remember whether there was any talk whether I had any electric outlet. I went to help Mrs. Brabazon.
“Q. And what did these men do, Mr. Kay and Mr. Dicker ? A. I didn’t pay any attention to the men at that time. I went on to wait on a customer and in waiting on this customer I happened to look up and I noticed the men were not in the room.
“Q. In the back room ? A. Well, I didn’t know, any particular attention, where they were although I did hear voices in the back room.”
That testimony also warranted the jury’s finding that Alden Brabazon did not give permission and consent to a demonstration of spraying difuso- from the difusor. If there was a termination of the salesmen’s license, and the plaintiffs did not otherwise consent to a demonstration, or if it was made solely to- induce Louis Barres, the proprietor of the meat market, to purchase the articles, then making a demon
In view of the controlling importance of the issue as to whether there was a termination of the license prior to the making of the demonstration, that issue should have been determined by the jury. If a finding thereon were involved only as a basis for sustaining the judgment, the issue could be deemed to have, been decided by the court in conformity with the judgment (sec. 270.28, Stats.; Delfosse v. New Franken Oil Co. 201 Wis. 401, 230 N. W. 31) inasmuch as neither party requested a jury finding thereon, and the evidence admitted of a finding favorable to the plaintiffs. However, that presumption is not applicable to an instruction to the jury, the propriety and application of which depends upon a certain state of facts as tO' which there is an issue under the evidence. On this appeal Joannes Brothers Company contends that the court erred in instructing the jury that the burden of proof was on the defendants to establish that Alden Brabazon gave his permission and consent to make a demonstration of spraying difuso from the difusor. That
Plaintiffs’ alternative contention, that the making of the demonstration and the resulting injury to Mildred Brabazon can be held to have constituted assault and battery, because of which the defendants are liable for the resulting damage, cannot be sustained in view of the absence of any intention to do harm. As this court has said,—
“ ‘An assault is an intentional attempt, by violence, to do an injury to another.’ ... If there is no such intention,— no present purpose to do such injury, — then there is no assault. . . . ‘The intention to do harm is of the essence of an assault, and this intent is to be collected by the jury from the circumstances of the case.’ . . . ‘In the case of a mere assault, the quo animo is material, as without an unlawful intention there is no assault.’ ” Degenhardt v. Heller, 93 Wis. 662, 664, 68 N. W. 411; Donner v. Graap, 134 Wis. 523, 527, 115 N. W. 125; Vosburg v. Putney, 80 Wis. 523, 527, 50 N. W. 403.
The contentions of the defendants that even if there were some tort liability by reason of Dicker’s acts or conduct, they
The contention of the Joannes Brothers Company that there is no liability on its part by reason of the acts of its salesman Kay depends upon whether he in fact participated with Dicker in making the demonstration or whether his participation in Dicker’s transactions at the plaintiffs’ store ceased after the introduction of Dicker to them. The test-i-
By the Court.- — Judgment reversed with directions to grant judgment dismissing the complaint against the defendant, Lipsner; and to enter an order granting a new trial of the action against Joannes Brothers Company.