Harder v. Maloney
| Decision Date | 08 April 1947 |
| Citation | 26 N.W.2d 830,250 Wis. 233 |
| Parties | HARDER et al. v. MALONEY et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Sheboygan County; Henry A. Detling, Judge.
Reversed in part, affirmed in part.
This action was begun on February 13, 1946, by Olga Harder, as administratrix of the estate of Harold Harder, deceased, and Olga Harder, plaintiffs and respondents, against Patrick H. Maloney and Clarence H. Maloney and Sam Levitan, defendants, on account of the death of Harold Harder, deceased husband of Olga Harder, alleged to be due to the negligent use of cyanide gas in disinfecting a building known as the Friendly Tavern owned by Sam Levitan.
There was a trial. The jury found:
(1) That Harold Harder did not enter the building with the intent to commit larceny.
(2) That Harold Harder did not commit larceny after entering the building.
(3) That the defendants Maloney were negligent with respect to failing to protect against public entry into the building.
(4) That such negligence was a cause of the death of Harold Harder.
(5) That Harold Harder was negligent as to his own safety in respect to lookout; that he was not negligent in failing to heed the danger sign posted on the door of the building or remaining in the building longer than reasonable necessary to leave after detecting an unusual odor or in the exercise of ordinary care should have detected an unusual odor.
(6) That Harder's negligence as to lookout was a cause of his death; that his failing to heed the danger sign posted on the door and remaining in the building longer than reasonably necessary to leave after detecting an unusual odor or in the exercise of ordinary care should have detected an unusual odor was not a cause of his death, assessed the damages, and found that the defendants Maloney were 75% negligent and Harold Harder was 25% negligent.
Judgment was entered accordingly on the 14th day of June, 1946, from which the defendants Maloney appeal.
On and prior to April 16, 1944, the defendant, Sam Levitan, was the owner of a building known as the Friendly Tavern, located at 1236 Michigan Avenue, which is the northeast corner of Michigan Avenue and Thirteenth Avenue in the city of Sheboygan. The front of the building faced south, the west side of the building being along the lot line on the east side of Thirteenth Avenue. The front door was at an angle or right at the corner of the building In addition to the door at the southwest corner of the building, there was a door on the west side of the building used for the rear entrance. The west door has a larged paned glass in the upper part, which is in the normal line of vision.
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On Exhibit 5 there is indicated the relative location of the warning sign.
Prior to April 16, 1944, the defendant Levitan had entered into a contract with the defendants Maloney to fumigate the building in order to destroy certain noxious insects. The entire building, which had two stories, was to be fumigated and for that purpose all occupants were removed from the building and the keys of the building taken up so that the defendants Maloney were in the sole and exclusive possession of the building.
Large warning posters printed red on white paper were mounted on card board and taped to it by gummed tape. One poster was placed on the front door and one on the side door inside the glass, the printing being plainly legible from the outside. The windows and front door of the tavern were taped from the inside and the west or rear door was properly taped from the outside with gummed tape. After the door was taped, it would take a pull of thirty or forty pounds to open the door. The fumigating agent was cyanide gas, which was poured into cans that contained discs and distributed into different parts of the building. The party who taped the west door, which was the exit used by those engaged in fumigation, testified that he locked the door but upon that question there is a dispute in the evidence so we shall assume that the door was not locked.
The work of fumigation commenced on Sunday morning about 11 o'clock and was completed about 2:15 o'clock in the afternoon. The deceased, Harold Harder, was seen to enter the building through the west or rear door by Willis Kempers and his wife. Having seen the sign on the door Kempers knew that the building was being fumigated and that it was dangerous to enter it. He went in search of an officer, returned very shortly. The door was opened and Harder was found lying five to ten feet from the door and was pulled out of the building by Kempers and the officer but was found to be dead. Harder had apparently entered the building, gone to the back bar, taken a bottle of vermuth, started to leave the building by the west door and died before he reached the door. Kempers and the police officer saw the warning signs on the doors which were plainly visible from the outside, saw that the door had been taped.
There is some evidence in the record to the effect that Harder was partially intoxicated and a tavern keeper just to the north of the Levitan building had refused to sell him any more liquor but he appeared to know what he was about, was able to walk and there is no evidence that he was so intoxicated that he did not know what he was doing.
Other facts will be stated in the opinion.
Evrard & Evrard and Joseph P. Holman, all of Green Bay, for appellant.
Gruhle, Fessler & Wilkus, of Sheboygan, for plaintiff and respondent.
Bassuener, Humke, Poole & Axel, of Sheboygan, for defendant and respondent.
The plaintiff makes four contentions in this case: (1st) that the warning notice was inadequate; (2d) that the deceased was not a trespasser; (3d) that even if the deceased were a technical trespasser, recovery should not be denied because of the inherently dangerous nature of the gas; and (4th) the deceased was an invitee under the evidence and as such was entitled to have the defendants exercise reasonable care for his safety.
A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise. But is it argued on behalf of the plaintiff that even if Harder was a technical trespasser, the plaintiff is nevertheless entitled to recover.
Harder was under the circumstances of this case something more than a technical trespasser. The undisputed evidence shows that he opened the door upon which there was a sign which must have been within two feet of his eyes, went into the building for the purpose of securing a bottle containing vermuth and died before he reached the door. He was not an...
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Hopkins v. Ros Stores, Inc.
...in the possession of another without the privilege to do so created by the possessor's consent or otherwise." Harder v. Maloney, 250 Wis. 233, 238, 26 N.W.2d 830, 832 (1947). But see Hartman v. Badger Tobacco Co., 210 Wis. 519, 520, 246 N.W. 577, 578 (1933) (passenger in motor vehicle was t......
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Geyso v. Daly
...Trespass occurs when a person enters or remains upon land in the possession of another without privilege to do so. Harder v. Maloney, 250 Wis. 233, 238, 26 N.W.2d 830 (1947). The Dalys argue that their status as members of the public entitles them to use the second gate for County Highway D......
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Wannmacher v. Baldauf Corp.
...forbidden area, he becomes a trespasser so as not to be entitled to claim damages under the safe place statute, are: Harder v. Maloney, 1947, 250 Wis. 233, 26 N.W.2d 830; Ryan v. O'Hara, 1942, 241 Wis. 389, 6 N.W.2d 209; and Grossenbach v. Devonshire Realty Co., 1935, 218 Wis. 633, 261 N.W.......
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McNally v. Goodenough
...the protection of the statute. On the other hand, the safe place statute does not protect one who is merely a trespasser. Harder v. Maloney, 250 Wis. 233, 26 N.W.2d 830; Newell v. Schultz Bros. Co., 239 Wis. 415, 421, 1 N.W.2d We need not determine whether the facts might warrant a finding ......