Kreatz v. St. Cloud School District , 82 Minn. 516 ( 1901 )

LEWIS, X

Second appeal in this action, and the decision in the former appeal will be found reported in 79 Minn. 14, 81 N. W. 533. Upon the trial below, plaintiff had a verdict, and defendant appeals from an order denying its motion for a new trial.

The legal questions determined upon the former appeal control the disposition of the questions raised at this time, and it is only necessary to determine whether they were correctly applied by the trial court, and whether the evidence is sufficient to sustain the verdict. The question at issue was simply this: The plaintiff claimed to have finished his heating-plant contract, and notified the chairman of the building committee that he would no longer keep the heat up for defendant’s benefit, and that, if defendant wanted the heat kept up, to send some one to take charge, or he would turn the water off. Plaintiff further claims that thé building committee did thereupon take charge of the plant and operate it, and while doing so the accident occurred; that thereupon defendant ordered the repairs done, for which plaintiff: brought this action. There was no dispute as to the fact that the accident occurred, and that defendant ordered the repairing done; and it was admitted that, in so ordering the repairs, defendant did not waive its right to' hold plaintiff responsible for the injury, and that in making the repairs plaintiff did not waive his right to hold defendant for the reasonable value of the services. It seems to have been admitted that plaintiff had completed his contract when he notified the building committee to take charge of the plant, and there was evidence that the janitor, an employee of defendant, was in actual charge of the plant when the accident happened.

Such being the situation, there were left for settlement at the trial only these questions, viz.: Was the janitor operating the plant at the time of the accident on behalf of the defendant? Or, to put it more fully, as did the trial judge in submitting the case to the jury, had plaintiff surrendered possession of the plant to defendant, had the committee assumed control of it, and did the accident occur while in defendant’s control, and by reason of its negligence? The whole case seems to turn upon this point: Was the evidence sufficient to show that the building committee had authorized its agents to assume control of the heating plant?

There was evidence on part of plaintiff tending to prove that fact, substantially as follows: When notified by plaintiff to take charge of the plant or it would be shut down, the chairman of the building committee referred the plaintiff to Mr. Parr, the superintendent of schools. Plaintiff saw Mr. Parr, who told him that he would put their licensed engineer in charge. On the following-day, Tenney, who was superintendent of construction for defendant, told plaintiff not to shut down the plant; that Mr. Parr had directed him to place Lacher in charge. Lacher was at that time a janitor in the employ of defendant, and was told by Heimann to take charge, and did so. Heimann had been instructed by Tenney to so instruct the janitor. Heimann was not an employee of defendant, but Parr and Tenney were. Parr, as superintendent of schools, had a general supervision of janitors, by virtue of his office.

We think it was proper to prove the acts and declarations of Parr with reference to the control of the janitor and his connection with the new plant. If the chairman of the building committee had not referred plaintiff to Parr for authority, it might be different. Possibly his act in assuming to put a man in charge of the plant without special authority would not bind defendant. But, the matter having been referred to him, his action was binding on defendant. It was of no consequence that he did not directly place the janitor in charge. If he directed Tenney to do'so, and the plaintiff, relying upon the result of such action, surrendered possession to the janitor, then the defendant assumed control, and was responsible for the injury which followed. As decided in the former appeal, formal action by the school board or by the building committee was not essential. The active representative of the committee had, by virtue of his position as such, power to discharge the plaintiff from the responsibility of keeping control of the plant. The evidence is sufficient to support the verdict, and we find no error in the record.

Order affirmed.