Boutin v. Cardinal Theatre Co.

• Decision Date: 08 June 1954
• Citation: 267 Wis. 199,64 N.W.2d 848
• Parties: BOUTIN, v. CARDINAL THEATRE CO.
• Court: Wisconsin Supreme Court

Page 848

64 N.W.2d 848

267 Wis. 199

BOUTIN, v. CARDINAL THEATRE CO.

Supreme Court of Wisconsin.

June 8, 1954.

Action to recover damages for personal injuries which plaintiff alleged he sustained by reason of defendant's violation of the safe place statute, sec. 101.06, Stats. Verdict and judgment thereon were for the plaintiff.

Material facts will be stated in the opinion.

Rieser, Mathys, McNamara & Stafford, Madison, for appellant.

McAndrews & Melli, Madison, for respondent.

BROWN, Justice.

Sec. 101.06, Stats., reads:

'Employer's duty to furnish safe employment and place. Every employer shall furnish employment which shall be safe for the employes therein and shall furnish a place of employment which shall be safe for employes therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employes and frequenters. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building, and every architect shall so prepare the plans for the construction of such place of employment or public building, as to render the same safe.'

At all times in question for purposes of the statute appellant was the owner of a motion picture theatre. Respondent entered the darkened theatre as a patron while a performance was going on and proceeded to what appeared to be an unoccupied seat. There he sat down but the part of the seat upon which one sits, hereafter called the cushion, was not there and respondent sat violently upon the floor thereby receiving the injury to his back of which he now complains. He remained in the theatre for approximately an hour and a half and on his way out he reported the fact of the missing cushion to the assistant manager of the theatre. At that time respondent did not believe he had sustained any serious harm but as time went on he continued to have increasing pain and disability and served notice of injury and, later, commenced this action within the period prescribed by the statute of limitations.

At the trial when the respondent's witnesses had concluded their testimony, appellant moved for a directed verdict. The trial court denied the motion. The jury found that appellant had failed to furnish respondent with a seat as free from danger to his life, health, safety and welfare as the nature of the building and the business conducted therein would reasonably permit and that such unsafe condition was a cause of respondent's injuries. There is ample evidence to sustain such findings. The jury then found that appellant, through its employees, in the exercise of ordinary care, ought reasonably to have known of such unsafe condition. Appellant submits that this answer has no support in the evidence.

Sec. 101.06, Stats. requires the owner of a public building or place of employment to construct, repair and maintain it so as to render it safe for frequenters. There is no question but that appellant is one of those charged with this duty and that respondent is a frequenter. There can be no question, either, that both the building and the seats for patrons were of safe construction. The seats were of the type standard in motion picture theatres and in that respect must be considered adequate under the statute. But seats originally safe are to be kept so. That is the duty of maintenance and repair which the statute imposes. Construing this statutory provision, in Pettric v. Gridley Dairy Co., 1930, 202 Wis. 289, 293, 232 N.W. 595, 597, we held:

'* * * In terms, the statute imposes the absolute duty upon the employer to repair and maintain the place of employment so as to render the same safe. We have given consideration to the question of whether this statutory provision does impose an absolute duty on the employer so as to make him practically an insurer of the safety of his premises so far as repair and maintenance is concerned. It would seem that in order to make an employer liable for defects in the nature of repair or maintenance he should have either actual or constructive notice of such defects. Natural principles of justice would seem to require that. Such principles of justice are recognized by the common law, as indicated in Lundgren v. Gimbel Bros., 191 Wis. 521, 210 N.W. 678, and cases therein cited. This is so in accord with the natural instincts of justice that a contrary purpose should not be imputed to a legislative act in the absence of an unequivocal declaration of such purpose. We therefore consider that the legislative purpose will be given full scope if the language of the statute be interpreted in accordance with these natural principles of justice, and hold that the duty of the employer to repair or maintain his place of employment does not arise until he has either actual or constructive notice of the defect.'

For more than twenty years the legislature has acquiesced in this interpretation of the statute and it must be considered the law until the legislature sees fit to change it.

Respondent does not claim that appellant had actual knowledge that this seat was out of repair and was unsafe until respondent, himself, reported that fact more than an hour after the accident. The question then is one of the constructive notice which appellant had of the seat's unsafe condition. The burden of proving all elements of liability, including this one, is on the plaintiff,--the respondent here. Evidence in his behalf warrants a finding that, to appellant's knowledge, approximately ten such cushions were so damaged each week, though not necessarily to the extent that they were rendered unsafe, that appellant removed them for repairs and that appellant kept a dozen extra cushions on hand for replacements while repairs were being made; further, that in the memory of appellant's employees five cushions had been removed and carried away by thieves or vandals during performances and that it was not a difficult or a long operation to unscrew or unbolt the fastenings and remove the cushion from its proper place. Respondent also submits that with this knowledge of vandalism it was appellant's duty to so patrol its theatre during performances as to discover promptly the absence of seat cushions from their proper places. Appellant did not maintain such a patrol nor were the theatre attendants instructed to watch out for patrons attempting to displace cushions or carry them out of the theatre. Because of such dereliction of an alleged duty respondent submits that appellant had constructive notice of the absence of the cushion in question.

Sec. 101.06, Stats. requires appellant to do everything reasonably necessary to protect the safety and welfare of frequenters of its theatre. Sec. 101.01(11), Stats. defines 'safe' and 'safety' as being such freedom from danger as the nature of the employment, place of employment, or public building will reasonably permit. For the purposes of respondent's argument we may concede that under these circumstances appellant's statutory duty required vigilant inspections by appellant's employees to ascertain that seat cushions were in place and to discover promptly any absences. Under the statute the same rule applied, whether the proprietor is an owner or an employer. Kaczmarski v. F. Rosenberg Elevator Co., 1934, 216 Wis. 553, 257 N.W. 598. In Pettric v. Gridley Dairy Co., supra, we held that the statute does not make an owner or employer the insurer of the safety of the frequenter and his duty to repair or maintain does not arise until he has at least constructive notice of the defect. To have notice of a defect, of course the defect must exist and, in order to impose liability, it...