Asen v. Jos. Schlitz Brewing Co.

• Decision Date: 29 November 1960
• Citation: 106 N.W.2d 269,11 Wis.2d 594
• Parties: Waldomar N. ASEN, Respondent, v. JOS. SCHLITZ BREWING CO., a Wis. corporation, et al., Appellants.
• Court: Wisconsin Supreme Court

Page 269

106 N.W.2d 269

11 Wis.2d 594

Waldomar N. ASEN, Respondent, v. JOS. SCHLITZ BREWING CO., a Wis. corporation, et al., Appellants.

Supreme Court of Wisconsin.

Nov. 29, 1960.

Rehearing Denied Feb. 7, 1961.

Wickham, Borgelt, Skogstad & Powell, Kivett & Kasdorf, Milwaukee, Alan M. Clack, Norman C. Skogstad, Donald R. Peterson, Milwaukee, of counsel, for appellants.

Phillips, Phillips, Hoffman & Lay, Milwaukee, N. Paley Phillips, Bertram J. Hoffman, Donald P. Lay, Milwaukee, of counsel, for respondent.

FAIRCHILD, Justice.

1. Jurisdiction to review the order. But for ch. 189, Laws of 1959, creating sec. 274.11(4), Stats., our jurisdiction to review the order entered October 9, 1959, would be open to serious question. The new sec. 274.11(4) provides:

'The right of appeal shall exist from the time of the entry of the appealable order or judgment and in cases of appeal the supreme court shall have jurisdiction over the subject matter of the action from that time. The procedural requirements of subs. (1), (2) and (3) and of this chapter shall relate only to the jurisdiction of the court over the parties to the appeal.'

Since the order in question grants a new trial, it is appealable. Sec. 274.33(3), Stats. Neither party has challenged our jurisdiction, and both have fully argued all questions raised. The defendants appear to have appealed only from the portions of the order which are not appealable. See Raether v. Filer & Stowell Mfg. Co., 1913, 155 Wis. 130, 134, 143 N.W. 1035. The plaintiff requested a review of the portion of the order granting a new trial, but since no appeal had been taken from that portion, sec. 274.12(1), under which plaintiff proceeded, did not authorize a request for review. His proper remedy was to appeal. Sec. 274.12(4).

In Sicchio v. Alvey, 1960, 10 Wis.2d 528, 539, 103 N.W.2d 544, we left open the question of whether we are authorized by sec. 274.11(4), Stats., to review an appealable order as to which no notice of appeal has been served if the parties appear before us and argue the merits without noting any objection to our jurisdiction. We now conclude that sec. 274.11(4) does authorize such review; that notwithstanding any irregularities, the matter is before us as fully as if there had been an appeal from the entire order. See Town of Madison v. City of Madison, Wis.1960, 106 N.W.2d 264.

2. Applicability of Order 18 of General Orders on Safety. The jury was instructed that Order 18, Wis.Adm.Code, sec. Ind 1.18, was in force at the time and place in question, and provided in part:

'Where employees are required or permitted to work in elevated places scaffolds or platforms shall be provided, except that ladders may be used if the work to be performed is of a transitory nature and extent, but only then if ladders can be used with a reasonable degree of safety.'

Upon motions after verdict, the circuit court correctly determined that Order 18 is inapplicable. Its title is: 'Scaffolds or Platforms for the Installation, Operation, Maintenance or Changing of Occupancy Equipment.' A note is printed at the end of the order, as follows: 'For equipment other than occupancy equipment, see General Orders on Safety in Construction.' The General Orders on Safety in Construction appear in Wis. Adm.Code, secs. Ind 35.001 ff. They are applicable to all operations incident to the maintenance of structures. Sec. Ind 35.02(24) defines structure as 'anything that is built or constructed, an edifice or building of any kind, or any piece of work artificially built up or composed of parts joined together in some definite manner.' Requirements as to provision of scaffolds and ladders are found in these sections, but under sec. Ind 35.01, the responsibility for the provision and maintenance of protection rests upon the immediate employer unless the duty be assigned and properly executed by the assignee. The sign in question appears to us to fall within the classification of structure rather than occupancy equipment. Accordingly, neither Order 18, nor the General Orders on Safety in Construction imposed any duty on defendants in the circumstances before us.

3. Applicability of Order 17 of General Orders on Safety. Plaintiff claims that the area between the top of the molding, and the surface of the sign was a platform and therefore subject to Order 17 (Wis.Adm.Code, sec. Ind 1.17). This order provides in material part that every platform, or other surface on which employees work, shall be substantially constructed, and if more than 24 inches in height shall be equipped with standard guard rails and toe boards unless guarded by location.

Upon motions after verdict, the circuit court concluded that the area in question was a platform, and that the jury should have been instructed as to the provisions of Order 17. As noted by the circuit court, Webster's New International Dictionary (2d ed.), Merriam Co.,...