Muench v. Heinemann, 119 Wis. 441

119 Wis. 441 | Wis. | 1903

WiNsnow, J.

There were two exceptions taken to rulings upon evidence, which will be noticed before proceeding to the main question in the case:

. Both the plaintiff and his brother testified to having had Conversations with one of the defendants (Mr. Jenner) after the accident, and that Mr. Jenner stated that plaintiff was struck by the falling pulley or wheel; that it was put up carelessly, and that it was just put up on a two-inch piece of pine wood with a sereAv, and the screw worked through; that it ivas negligent on the part of the elevator people to put it up in that way; and that it ought to have been bolted. Due objection and exception were taken to the reception of this evidence, but we are unable to see wherein there was any error, tTenner was one of the defendants, and a copartner with the other defendants. ITis statements, which were in the nature of admissions as to the way in which the accident was caused, and the manner in which the pulley was attached to the ceiling, were certainly competent, not only as against himself, but as against his copartners.

It appeared that the plaintiff had a small grocery business,, which he managed afternoons, and that he peddled milk in the morning, and that he was prevented by the accident from attending to either business for about eight weeks. lie was then asked the question: “What were your customary and usual profits from your business — both the milk and grocery business — for the six months prior to the accident ?” To this, objection was made by defendants as incompetent, with a request to be allowed to ask the witness a question to show its incompetency, which being granted, the witness was asked if' he kept books in his business, and replied in the affirmative. Upon this, the objection was renewed and overruled, and the witness answered, “About $20 per week.” The witness further stated that he was obliged to employ a man for eight weeks, at an expense of $10 per week, while he was laid up. Ho further evidence was given as to the size or character oi the plaintiff’s business. In charging the jury as to the eighth question of the special verdict, the trial judge said, in substance, that compensation would consist of a reasonable physician’s bill, the reasonable expense of hiring an extra man, made necessary by his injury, and such sum as would reasonably compensate plaintiff for his pain and suffering resulting from the injury, and that the jury should answer the question by taking into consideration these elements. It is claimed that it was error to admit the testimony as to the profits of tfie plaintiff’s business. This subject lias been so recently reviewed by this court in the case of Hear v. Warren-Scharf A. P. Co. 118 Wis. 57, 94 N. W. 789, that any extended discussion now seems out of place. In that case it was, in substance, held that where a man not working on a salary, but managing an established business, which is mainly dependent on his personal exertions, has been disabled, and sues to recover damages for the injury, it is competent to show the character and magnitude of the business, and to that end to show the capital and assistance employed in the business, also the quality and amount of the plaintiff’s services in the business before the accident, and the amount of the profits of the business, not for the reason that such profits are in any respect elements of damage, nor that their loss or impairment can be proven because they represent interest on the capital employed, the value of the good will, and perhaps other elements, in addition to the value of the personal services of the plaintifE, but for the reason that all these elements, when known, are truly descriptive of the quality of the service of which the plaintiff- was capable before his injury, and thus tend to throw light on his earning capacity. Of course, all of the elements above named are essential, and, in the orderly trial of a case, the proof of the amount of profits should not be made until the other necessary elements are shown. This, however, is simply a question of the order of the proof, which is largely in the discretion of the court, and it is manifest that all the elements cannot be proven in one breath; nor was any objection made upon this ground, but simply upon the ground, apparently, that the books were the best proof of the fact. ITad objection been made on the ground that the preliminary facts had not been shown, or had motion been made to strike out on that ground, it may well be that the objection should have been sustained or the proof stricken out; but in the absence of such objection or motion we cannot say there was affirmative error in the ruling, es-peeially in view of tlie fact tliat tlie charge of the court was entirely correct, and did not allow the consideration or recovery of loss of profits as an element of damage..

The main question in the case, however, is whether, under the facts testified to by the plaintiff himself and found by the jury, there is any liability shown; and this depends upon the question whether, under those facts, the plaintiff was a mere licensee, or one who was upon the premises by invitation, express or implied. If he was a mere licensee, there can be no recovery, because a mere licensee takes the premises as he finds them, and the licensor owes him no duty, save to refrain from acts of active negligence rendering the premises dangerous. Cahill v. Layton, 57 Wis. 600, 16 N. W. 1. If, on the other hand, he was more than a mere licensee, and was on the premises by invitation, express or implied, the defendants owed him the duty of exercising ordinary care to keep the premises in safe condition for use by persons themselves exercising ordinary care. Gorr v. Mittlestaedt, 96 Wis. 296, 71 N. W. 656.

Mere permission or license does not imply invitation. When that fact alone appears, the permitted person is a mere licensee; but when it is shown that the permitted person enters on tlie premises in the ordinary way to transact business with the licensor, or that the object of his visit is one in which there is mutuality of interest between licensor and licensee, then the permitted person ceases to be a mere licensee, and becomes not only a licensee, but an invited person, to whom the duty of exercising ordinary care is owing. Hupfer v. National D. Co. 114 Wis. 279, 90 N. W. 191. In the present case it appears without dispute that the plaintiff went upon the premises for the transaction of private business of his own with the defendants’ employees, in which the defendants themselves had no interest, and up to the time, at least, when the defendant Jenner, as alleged and found, directed him to use the west elevator, he was a mere licensee; and the simple question presented is whether that direction constituted an invitation, either express or implied. We have been unable to see how it can be so construed. True, it was a permission, but a mere licensee has permission. It substituted affirmative consent for mere sufferance, but simple consent is not invitation, express or implied. It was as if Jenner had said, “Tou are at liberty to use this elevator in transacting your own business with my employees.” How can this be construed as invitation, express or implied ? There was still no mutuality of interest in the object of the plaintiff’s visits, nor any express or implied request to continue them, but only affirmative permission in place of tacit sufferance.

We are referred to the case of Illinois Cent. R. Co. v. Hopkins, 200 Ill. 122, 65 N. E. 656, as sustaining the idea that there was implied invitation in the present case. That case certainly carries the rule very far, and furnishes some ground for the contention made here; but the decision was placed upon the ground that mutuality of interest was shown, and hence that there was implied invitation, and we are unable to. find any such element in the present case.

The result is that, in any aspect of the evidence, the plaintiff was a mere licensee upon the premises; and, no active negligence being shown, he cannot recover. We have found' no other exceptions in the record which require discussion.

The question as to whether the ease should be sent back for a new trial, or for the entry of a judgment in favor of the defendants, is not entirely clear. The ordinary rule in jury cases is that upon reversal for error they will be remitted to. the trial court for a new trial; but where a special verdict has been rendered, and the appellant has moved in the trial court to change the answers to certain questions, and for judgment-on the verdict when so changed, this court will, on reversal, send the case back with directions, to enter judgment according to the motion, if it be held that the motion should have-been granted. Conroy v. C., St. P., M. & O. R. Co. 96 Wis. 243, 70 N. W. 486; Keller v. Schmidt, 104 Wis. 596, 80 N. W. 935. In the present case there were motions to change the answers to questions 2 to 5, inclusive, and for judgment on the verdict when so amended; but the difficulty is that there was evidence in support of all these answers, and hence the motions were properly overruled. The defendants, before making these motions, however, had moved for judgment notwithstanding the verdict; but. here we are met with the proposition broadly stated in Sheehy v. Duffy, 89 Wis. 6, 61 N. W. 295, and reiterated in the Conroy Case, that the defendant cannot move for judgment notwithstanding the verdict. This was a technical rule of the ancient practice, the reason for which is found in finespun distinctions, more fanciful than convincing. It seems to sacrifice the substance of things .to mere form. The substance of the requirement is that the appellant should move for judgment after the verdict is in, so that the trial court may have an opportunity to pass on the question. To say that when he moves for judgment on the verdict this court will, on reversal, direct the judgment, but -will refuse it when he moves for judgment notwithstanding the verdict, savors extremely of legal hairsplitting. In either case the trial court is moved to grant the very judgment which we now say should have been granted, and we have concluded to overrule the case of Sheehy v. Duffy upon this point.

By the Court. — Judgment reversed, and action remanded with directions to enter judgment for the defendants.