Freimann v. Cumming
| Decision Date | 11 November 1924 |
| Citation | 185 Wis. 88,200 N.W. 662 |
| Parties | FREIMANN v. CUMMING ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.
Action by Elsie Freimann against C. J. Cumming and another. From order overruling demurrer to answer, plaintiff appeals. Affirmed.
The plaintiff seeks to recover for personal injury caused by the defective condition of the top stair in a two-story office building. The following facts, the only ones material here, appear from the complaint and Cumming's answer:
Prior to August 20, 1923, Cumming was the owner of the building, and on that date he and the defendant Newland made a land contract. No claim is made that the defect alleged to have caused the plaintiff's injury existed at that time. Under the terms of the land contract a substantial part of the agreed price was then paid, the balance in monthly installments until a specified amount remained due, and then a warranty deed to be given and payment of such balance secured by a mortgage. Subsequent taxes and insurance were to be paid by defendant Newland. Newland agreed to hold the premises as tenant by sufferance of the defendant Cumming, subject to be removed as tenant holding over by process under the statute whenever default should be made in the payment of any of the installments of purchase money, interest, taxes, assessments, or insurance premiums, and to keep the building on said premises in as good repair and condition as at the time of the contract, except ordinary wear and decay.
It was also agreed that, if the defendant Newland failed or defaulted in any of the terms or conditions as to her provided, then at the option of the said Cumming, the agreement became utterly void and all payments thereon forfeited and without the giving of any notice, subject to be revived and renewed only by the act of Cumming or by mutual agreement, and that when such default or violation occurs the rents thereafter should be collected only by Cumming; that no default has occurred or any exercise of such option been made; that Cumming surrendered, at about the date of the contract, and defendant Newland entered upon the exclusive possession of the same, and that since such time Cumming has not controlled, managed, or operated the building and premises, and has had no right, title, or interest therein except as in the land contract provided.
The trial court overruled plaintiff's demurrer to such answer, and plaintiff appeals.Walter F. Mayer, of Milwaukee, for appellant.
George H. Katz, of Milwaukee, for respondents.
ESCHWEILER, J. (after stating the facts as above).
No question is raised but that this particular building is a public building within the purview of the safe place statute here invoked, and as defined in section 101.01 (12) Stats. Unless, however, the defendant Cumming is within the definition of the word “owner,” as the same is used in the same law, it is conceded there can be no recovery as against him.
The material part of the statute upon which plaintiff predicates her right to recover as against respondent is found in section 101.01(13),...
To continue reading
Request your trial
-
Caldwell v. Piggly-Wiggly Madison Co.
...a right to present possession, control or dominion of such place exists, the holder of such right may be held liable, Freimann v. Cumming, 1924, 185 Wis. 88, 200 N.W. 662.' Potter v. City of Kenosha (1955), 268 Wis. 361, 371, 68 N.W.2d 4, See also Werner v. Gimbel Brothers (1959), 8 Wis.2d ......
-
Novak v. City of Delavan
...it had 'control or custody' of the bleachers. Mere possession is not the equivalent of control or custody. In Freimann v. Cumming (1924), 185 Wis. 88, 91, 200 N.W. 662, 663, the court discussed the character of control and custody and 'Considering the language and general purpose of this st......
-
City of Milwaukee v. Greenberg
...expressly or implicitly found a land contract vendor not to be an owner under the relevant statutory provisions. In Freimann v. Cumming, 185 Wis. 88, 200 N.W. 662 (1924), we determined that a vendor does not have "the right to present possession or present control or dominion" over the prem......
-
Menge v. Manthey
...employment, under an independent contractor, Manthey was not responsible for the reasonable safety of that place. Freimann v. Cumming, 185 Wis. 88, 91, 200 N. W. 662. [5] The rule that when the doing of work in the ordinary mode necessarily or naturally results in producing a defect or nuis......