O'Brien v. Fred Kroner Hardware Co.

• Decision Date: 15 November 1921
• Citation: 175 Wis. 238,185 N.W. 205
• Parties: O'BRIEN v. FRED KRONER HARDWARE CO.
• Court: Wisconsin Supreme Court

175 Wis. 238

185 N.W. 205

O'BRIEN

v.FRED KRONER HARDWARE CO.

Supreme Court of Wisconsin.

Nov. 15, 1921.

Appeal from Circuit Court, La Crosse County; E. C. Higbee, Judge.

Action by Florence O'Brien against the Fred Kroner Hardware Company. From an order overruling a demurrer to the complaint, defendant appeals. Affirmed.

Rosenberry, J., dissenting.

The substance of the lengthy complaint is as follows:

Plaintiff is the mother of a boy, Adena Hopkins, who was killed October 22, 1919, then of the age of 13. That the father of the boy was dead and the mother would have been entitled to the earnings of the infant until his majority, and had reason to expect assistance from him if he had lived until that period.

That the defendant, a Wisconsin corporation, is a wholesale and retail dealer in hardware, and also deals in dynamite exploders or fulminate caps, which are articles liable to explode if picked with a pin or knife. That the defendant owned a building in La Crosse extending about 100 feet across a lot of about 150 feet. That the 50 feet in the rear of said building extended to the public alley, and that such place and the adjoining place in the rear of said building and of the other buildings in said alley had been, to the knowledge of the defendant, used by children in that vicinity for playing games.

That defendant's building was used by it for storage purposes on both the first and second floor, and that the building had been allowed to become out of repair, with the rear door thereof, opening onto said vacant places, left open and unlocked, and the panes of glass alongside such door were broken. That there was a stairway in the rear of the building from the first to the second floor, with a door on the second floor, also left unlocked, and that the windows on the second floor had been broken for a long time. That prior to October 17, 1919, “the defendant carelessly and negligently, and in violation of the law and statutes of the state of Wisconsin in such case made and provided, and the ordinances of the city of La Crosse, and especially section No. 4 of Ordinance No. 37 of the city of La Crosse, left on the ground near the door in the rear of the first floor of said building, wholly exposed and accessible to children of tender years, refuse and empty boxes, among which was a wooden box, which said box contained tin boxes containing dynamite exploders or caps, the property of said defendant. That said exploders or caps are about 1 1/2 inches long, and about the size of a percussion cap, and that said tin boxes containing said caps or exploders were covered and surrounded with sawdust.”

“That said section 4 of Ordinance No. 37 is as follows: ‘ Powder Magazines to be Approved by Council.--Section 4, all gunpowder and other explosive materials of the kind hereinbefore mentioned, except as provided in section 3 of this ordinance, brought within the corporate limits of this city for sale or other purposes, shall be deposited and kept in such powder magazine or magazines as may from time to time be approved of and designated for that purpose by the common council; and no person shall keep or have or suffer to be kept or had in any building or place by him or her owned or occupied in this city, except in the said powder magazine or magazines, any greater quantity of gunpowder or other explosive materials than is mentioned in the third section hereof for any longer period than twelve hours. Any person violating any provision of this section shall upon conviction thereof, be punished by fines of not less than ten dollars, nor more than one hundred dollars.” (Section 3 mentioned in the foregoing section 4 of the said ordinance is not quoted or otherwise mentioned.)

That on said October 17, 1919, the boy, Adena, with a number of other boys, was attracted to the defendant's old and dilapidated building and the refuse in boxes lying near the door. “That by reason of the carelessness and negligence of defendant in allowing said building to become out of repair, and the carelessness and negligence of the defendant in leaving said refuse and empty boxes, and said box of exploders and caps hereinbefore mentioned, open and exposed, the said Adena Hopkins discovered said box of caps and exploders, and then and there reached his hand into said wooden box and obtained two of the tin boxes containing said caps and exploders, and carried them to his home in the city of La Crosse. * * * That the said Adena Hopkins was then of the age of 13 years, and had no experience whatever with exploders or caps, and had no knowledge or information of the dangerous composition of said caps or exploders or their use or the great peril and danger incurred in handling the same, nor was there anything in the construction or appearance of said caps and exploders to cause a child of the age of the said Adena Hopkins to believe that there was danger in handling the same.”

That on October 21, 1919, the said Adena took the box with the caps and exploders to his grandmother's home in McGregor, Iowa. That on October 22, 1919, at said home in McGregor, Adena, in total ignorance of the danger and peril of handling said caps and exploders, and on account of his youth and inexperience and want of judgment, attempted to pick out the fulminate composition in said caps with a hat pin, and while so engaged the caps and exploders exploded, and as a result the said boy was killed.

“That the injuries hereinafter described were received by the said Adena Hopkins without any fault on his part. That the said Adena Hopkins was then and there totally ignorant of the danger of said caps exploding, and that said injuries were due wholly to the carelessness and negligence of the defendant in leaving said box containing said caps and exploders in said open and exposed place hereinbefore described, so that the said Adena Hopkins and other children playing in said vicinity as hereinbefore alleged had access to them, and through childish curiosity were attracted to said box and caps by reason of their attractive appearance. That said Adena Hopkins was of immature judgment, discretion, and experience, and was not aware that he was committing a wrong or offense in taking said boxes of exploders or caps, at the time set forth herein.”

The defendant demurred on the ground that the complaint on its face did not state facts sufficient to constitute a cause of action. From the order overruling such demurrer defendants have appealed.

George H. Gordon and Law & Gordon, all of La Crosse, for appellant.

F. E. Withrow, of La Crosse, for respondent.

ESCHWEILER, J. (after stating the facts as above).

It is to be gathered from the complaint that the pleader intends to charge that defendant's negligence, if any, arises from leaving exposed on the ground near the door of defendant's warehouse, either just within or just without the building, certain dynamite exploders or caps, which were in tin containers; the containers being packed in sawdust in a wooden box; that such box was wholly exposed and accessible to children of tender years; and that such acts were “in violation of the law and statutes of the state of Wisconsin in such case made and provided, and the ordinances of the city of La Crosse, and especially section No. 4 of Ordinance No. 37 of the city of La Crosse.”

No statute of the state is called to our attention, nor can we find any, which could be considered as having been violated by the defendant under the facts recited. There is nothing in section 4393a--1 to 4393a--7, Stats., inclusive, regulating the manufacture and storage of gun or blasting powder, or in section 4398a, Stats., prohibiting the sale or transportation of explosives for unlawful purposes, or in section 4398f, Stats., as to the storage or keeping of fireworks or firecrackers containing dynamite or other high explosives, that can be deemed in any way applicable to the present situation.

[1][2] It is also evident that the ordinance of the city of La Crosse, upon which plaintiff appears to rely, is not sufficiently well pleaded. The portion recited in the complaint and quoted supra shows on its face that section 3 of such ordinance is necessary to be known or shown in determining what is or what is not forbidden by the ordinance. For default of proper pleading thereof the court cannot take judicial notice of such ordinance. Leiser v. Koch, 138 Wis. 27, 29, 119 N. W. 839; Jones on Ev. (2d Ed.) par. 116.

In order to sustain the complaint therefore as stating a cause of action against the defendant it must appear therefrom that there was a breach by defendant of some common-law duty or obligation resting upon it towards the unfortunate boy whose distressing and untimely death is the reason for the bringing of this action.

It is extremely difficult from the language of the complaint to ascertain whether the pleader intended to allege that the wooden box holding the tin containers with the explosives was placed inside or outside of...