Filipiak v. Plombon

• Decision Date: 06 February 1962
• Citation: 113 N.W.2d 365,15 Wis.2d 484
• Parties: Anna FILIPIAK and Frank Filipiak, Plaintiffs-Respondents, v. Severyn PLOMBON, d/b/a Plombon Funeral Home, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 365

113 N.W.2d 365

15 Wis.2d 484

Anna FILIPIAK and Frank Filipiak, Plaintiffs-Respondents, v. Severyn PLOMBON, d/b/a Plombon Funeral Home, Defendant-Appellant.

Supreme Court of Wisconsin.

Feb. 6, 1962.

Action by plaintiffs Anna Filipiak and husband to recover damages from Severyn Plombon, doing business as Plombon Funeral Home, which resulted from injuries sustained by Mrs. Filipiak from a fall on a private sidewalk constituting part of defendant's premises.

The action was tried to the court and jury. The jury returned a special verdict wherein it determined that defendant was not negligent with respect to the manner of constructing the surface of the walk but was causally negligent in failing to care for the surface of the walk as safely as the nature thereof would reasonably permit; that Mrs. Filipiak was causally negligent as to the care she exercised for her own safety; and that of the total aggregate causal negligence 75 per cent was attributable to defendant and 25 per cent to Mrs. Filipiak. The jury awarded Mrs. Filipiak $8,000 for her personal injuries, and awarded her husband $3,600 damages for the loss of society and services of his wife and $1,087.75 for the medical and hospital expense incurred by him.

Judgment was entered January 31, 1961, on the verdict in favor of plaintiffs for 75 per cent of the damages found by the jury, together with costs and disbursements. Defendant has appealed from the judgment and plaintiffs have filed a motion to review the ruling of the circuit court which included questions in the special verdict relating to contributory negligence

Frank L. Morrow, Eau Claire, for appellant.

Herrick & Sigl, Eau Claire, for respondents.

CURRIE, Justice.

While additional issues are raised by defendant, we limit this opinion to passing upon these three questions:

(1) Does the evidence support the finding that the defendant was negligent with respect to maintenance of the private walk?

(2) Does the evidence support the finding that Mrs. Filipiak was negligent as to the care she exercised for her own safety?

(3) Was it prejudicial error for the trial court, in conducting the voir dire examination of the jury, to have asked questions which indicated to the jury that defendant was insured against the liability sought to be enforced by plaintiffs?

Negligence of Defendant.

Defendant contends that the record is devoid of evidence to sustain the finding that he was negligent with respect to the manner in which he maintained the private walk on which Mrs. Filipiak fell. If this contention is correct, it would result in a reversal of the judgment and dismissal of the complaint.

The accident occurred on January 19, 1958, in the city of Stanley, Chippewa county. At about 11:00 A.M. a party of five, including Mrs. Filipiak, came to defendant's funeral home to view the body of a deceased neighbor. The weather was cloudy and there was a mist or light drizzle which had commenced earlier in the morning and had continued up until the time of the accident. This mist or drizzle froze on the private sidewalk which ran between the public walk and the outside flight of six steps that led up to the front entrance of the funeral home. At about 12:30 P.M. Mrs. Filipiak and her companions left the funeral home through the front entrance. In so departing, it was first necessary to step upon a small platform and then descend the steps to the private walk. The other members of the party preceded Mrs. Filipiak down the steps and reached the public walk without incident. Mrs. Filipiak descended the steps, placed one foot on the private walk and had just placed the other foot on such walk when she slipped and fell, severely striking the back of her head.

The private walk only extended a distance of six or seven feet from the flight of steps to the public walk. A canvas canopy covered the platform, steps and private walk. However, this canopy only provided protection from above, the sides being open. At about 8:30 A.M. on the day of the accident, defendant's son arrived at the funeral home. He noted that walks 'all over town' were slippery, including the public and private walks in front of the funeral home. He tried to remove the ice on the private walk with a shovel but to no avail. Then he swept the walk and got some water softener salt and sprinkled that on it. He stepped on the chunks of salt to crush them and spread the salt, but this did not seem to have any effect in overcoming the slippery condition.

Defendant arrived at the funeral home at about 9:30 or 10:00 o'clock that morning and found both the public and private walks slippery. He took a broom and swept the private walk, but put no sand, salt or other substance on it to alleviate the slippery condition. There was water softener salt available in the funeral home but no sand or ashes. One of plaintiffs' witnesses testified that the application of salt, sand or cinders to an icy walk will make a nonskid surface. However, he further stated that where a continuing rain or mist is falling and freezing, repeated applications of such materials are necessary to overcome the slipperiness.

The private walk constituted a place of employment within the meaning of the Safe Place Statute, sec. 101.06, Stats. Werner v. Gimbel Bros. (1959), 8 Wis.2d 491, 493b, 99 N.W.2d 708, 100 N.W.2d 920. Accumulations of ice and snow on a walk or driveway constituting a place of employment may subject the employer to liability under the Safe Place Statute. Werner v. Gimbel Bros., supra, and Schwenn v. Loraine Hotel Co. (1961), 14 Wis.2d 601, 608-609, 111 N.W.2d 495. We deem that there was ample evidence upon which the jury could find that defendant was negligent in not maintaining the walk surface in as safe a condition as the nature thereof would reasonably permit. Therefore, defendant is not entitled to a dismissal of the complaint.

Negligence of Mrs. Filipiak.

By their motion for review, plaintiffs seek a review of the trial court's ruling in submitting, over objection, the question in the verdict which inquired as to whether Mrs. Filipiak was negligent with respect to the care which she exercised for her own safety, and the accompanying question of causation. Inasmuch as we herein conclude that there must be a new trial because of prejudicial error committed during the course of the trial, we deem it advisable to pass on this issue as a guide to the trial court in conducting the second trial.

All four of the people who accompanied Mrs. Filipiak to the funderal home on the day of the accident preceded her out of the building and successfully traversed the slippery private walk without falling. One of these was an elderly lady in her eighties. These facts would reasonably permit a jury to draw the inference that, had Mrs. Filipiak used the same care in stepping and walking upon this private walk as did her four companions, she would not have fallen.

Furthermore, there was testimony, disputed by Mr. Filipiak, that as she came out of the funeral home she was engaged in conversation with defendant, and that she was facing him at the time she fell. If this testimony was believed by the jury, they could also reasonably have inferred that she was not watching where she was walking.

It is our conclusion that there was sufficient evidence upon which the jury could determine that Mrs. Filipiak was negligent with respect to the care which she exercised for her own safety, and that such negligence was causal. Therefore, the trial court properly included the attacked questions in the verdict.

The Voir Dire Examination.

Before conducting the voir dire examination of the jury panel, counsel were informed that the trial judge would first propound questions to the entire panel, after which they would be permitted to question the panel or the individual jurors on matters not covered by the judge's questions. Apparently under this procedure it is the accepted practice for counsel to designate in advance any questions they desired to have the court to ask the panel. A preliminary conference was held between the court and counsel without the hearing of the jury with respect to such questions. In this conference, plaintiff's counsel requested that the jurors be questioned, in the court's voir dire examination of the jurors, as to whether any jurors were stockholders, officers, agents, employees, or otherwise interested in the Western Casualty & Surety Company. This company apparently had issued a public liability insurance policy to defendant which was in effect at the time of the accident.

Counsel for defendant strenuously objected to any questions disclosing the existence of insurance without a good faith showing by plaintiffs' counsel that he had reason to believe there were jurors on the panel so interested. The court then inquired whether plaintiffs' counsel had any basis for such an inquiry. Plaintiffs' counsel responded: 'Well, I have this basis: Out of a panel of eighteen people I think it is likely that one or more would be insured in this company or interested in it in some way.' He also advanced as a further reason that it might develop in the trial that the insurance company was interested in the action, or that a certain Eau Claire insurance agency had made an investigation of the accident. Defendant's counsel assured the court that he would not call as a witness anybody who had made the investigation.

The trial court made it plain that he entertained doubt whether, upon the showing made, any questions should be put to the jury about insurance. This interchange took place between the court and plaintiffs' counsel:

'The Court: Well, you're asking, Mr. Sigl, that the Court make this inquiry?

'Mr. Sigl: That is correct, your Honor.

'The Court: And if the Court makes such inquiry and there happens to be error because of this inquiry, you will be ready to take the consequences of this error in review in the Supreme Court?

'Mr. Sigl: I certainly will.'

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