DeLaney v. Supreme Inv. Co.

• Decision Date: 18 November 1947
• Citation: 251 Wis. 374,29 N.W.2d 754
• Parties: DELANEY v. SUPREME INV. CO.
• Court: Wisconsin Supreme Court

251 Wis. 374

29 N.W.2d 754

DELANEY

v.SUPREME INV. CO.

Supreme Court of Wisconsin.

Nov. 18, 1947.

Appeals from a Judgment of the Circuit Court for Milwaukee County; William F. Shaughnessy, Judge.

Reversed and remanded with directions to grant a new trial.

Action commenced September 12, 1945, by Marie Delaney, plaintiff and respondent, against The Supreme Investment Company defendant; Frank L. Soden, Mary Ferko Soden, John D. Ferko, Edward J. Ferko, Marie Ferko Dunlap, and Isabelle Soden, copartners d/b/a Independent Packing House Markets; T. C. Esser Company; and Arnold J. Heinen, defendants and appellants, to recover damages for personal injuries sustained by her as the result of a glass block falling from the front of the building occupied by the defendants Independent Packing House Markets as tenants. Defendants Arnold J. Heinen, as general contractor, and T. C. Esser Company, as sub-contractor, remodeled the front of the building in 1939. Upon stipulation the action was dismissed as to Supreme Investment Company, owner of the building. Defendants doing business as Independent Packing House Markets filed a cross-complaint against defendants Heinen and Esser Company to recover any liability found against them in favor of the plaintiff, and defendant Heinen filed a cross-complaint against T. C. Esser Company to recover any liability on his part. The case was tried to the court and a jury, which resulted in a judgment for the plaintiff against all defendants. The court dismissed the cross-complaints. All defendants appeal from the judgment in favor of the plaintiff, and defendants doing business as Independent Packing House Markets and defendant Arnold J. Heinen appeal from the judgment dismissing their cross-complaints.

The accident happened March 5, 1945, about 2:00 p. m. at 2739 North Teutonia Avenue in the city of Milwaukee. Plaintiff was walking along the street, with no intention of entering the store building, when one of the glass blocks, 24 inches by 24 inches in size and weighing 16 pounds, fell from the front of the building, injuring her. Defendants Frank L. Soden, Mary Ferko Soden, John D. Ferko, Edward J. Ferko, Marie Ferko Dunlap and Isabelle Soden, copartners d/b/a Independent Packing House Markets, and who will hereinafter be referred to as Independent Markets, leased the store building in question from the Supreme Investment Company. Under the terms of the lease they were authorized to remodel the front of the building in accordance with a plan they had adopted for all stores operated by them. They entered into a contract with Heinen to remodel the front of this building according to plans, specifications, drawings and sketches furnished, in a good, substantial and workmanlike manner, to the satisfation of and under the direction of Independent Markets, in which Heinen was to furnish material of a kind and quality, fit, proper and sufficient for completing the remodeling work. Heinen entered into a contract with T. C. Esser Company as a sub-contractor to furnish and install an alumilite store front and vitrolite structural glass blocks or plates, all as required on the job, construction details to be furnished by Esser company and all framing to be erected in strict accordance with details and specifications noted. Affeldt & Lichtsinn, of Milwaukee (Eldred Dede, of Milwaukee, of counsel), for appellant Arnold J. Heinen.

Lines, Spooner & Quarles, of Milwaukee, (Charles B. Quarles, of Milwaukee, of counsel), for appellant T. C. Esser Co.

Raymond J. Moore, of Milwaukee, for appellant Independent Packing House Markets.

Margaret Rettig, of Milwaukee (Wm. B. Rubin, of Milwaukee, of counsel), for respondent.

BARLOW, Justice.

This case was tried on the theory and claim that defendants failed to construct and maintain the building so as to render it safe under the provisions of sec. 101.06, Stats., commonly referred to as the ‘safe-place statute.’ Appellants contend this statute does not apply.

The safe-place statute first became the law of this state by the enactment of ch. 485, Laws of 1911. As enacted it concededly applied only to employees and frequenters and places of employment. Sec. 2394-48, 1911 Stats. provided that employers ‘shall furnish a place of employment which shall be safe for employes therein and for frequenters thereof.’ This section was amended by ch. 588, Laws of 1913, by adding the following: ‘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.’

This section has been renumbered, and is now sec. 101.06, Stats.

Sec. 2394-14(11) as originally enacted in 1911, provided: ‘The term ‘safe’ and ‘safety’ as applied to an employment or a place of employment shall mean such freedom from danger to the life, health or safety of employes or frequenters as the nature of the employment will reasonably permit.'

This section was amended by ch. 588, Laws of 1913, by adding the words shown in italics so as to read: ‘The term ‘safe’ or ‘safety’ as applied to an employment or a place of employment or a public building, shall mean such freedom from danger to the life, health, safety or welfare of employes, or frequenters, or the public, or tenants, and such reasonable means of notification, egress and escape in case of fire, as the nature of the employment, place of employment, or public building, will reasonably permit.'

This section was further amended by ch. 133, Laws of 1917, by adding the words shown in italics, as follows: ‘The term ‘safe’ or ‘safety’ as applied to an employment or a place of employment or a public building, shall mean such freedom from danger to the life, health, safety or welfare of employees or frequenters, or the public, or tenants, or firemen, and such reasonable means of notification, egress and escape in case of fire, and such freedom from danger to adjacent buildings or other property as the nature of the employment, place of employment, or public building will reasonably permit.'

Sec. 2394-41(11) has been renumbered and is now sec. 101.01(11), Stats. Sec. 2394-41 was further amended by ch. 588, Laws of 1913, by adding subsection (12) thereto, defining a public building as follows: ‘The term ‘public building’ as used in sections 2394-41 to 2394-71 shall mean and include any structure used in whole or in part as a place of resort, assemblage, lodging, trade, traffic, occupancy, or use by the public, or by three or more tenants.'

No further amendments material here were made to the sections and subsections heretofore set forth. They continued to be the law of this state at all times after their enactment to the present time.

Ch. 485, Laws of 1911, created the industrial commission to administer this chapter, and an examination of the history of ch. 101, Stats. shows that the amendments above referred to, and other amendments not material here, were sponsored by the industrial commission. It appears from the material available that there was doubt whether the safe-place statute applied only to equipment used by an employee or whether it also applied to the building in which he was employed. It had been argued in court that it applied to the equipment used by the employee, and not the building. The amendment to sec. 2394-48, 1911 Stats. by ch. 588, Laws of 1913, to include public buildings was for the purpose of clarifying this question. See ‘The Industrial Commission of Wisconsin’ by A. J. Altmeyer.

It also appears that prior to 1913 a series of fires had occurred in public buildings as defined by sec. 2394-41(12) [now sec. 101.01(12)] Stats. in the states of Ohio, New York, New Jersey, and other states, resulting in the death of a large number of persons, which caused great public alarm. See ‘Report of Allied Functions, Industrial Commission of Wisconsin’ issued August 31, 1914. This prompted the addition of the words ‘or the public or tenants, and such reasonable means of notification, egress and escape in case of fire, as the nature of the employment, place of employment, or public building’ will reasonably permit. From the material available it is evident the intention was to protect the people within the building. Among...