Holzworth v. State

• Decision Date: 20 May 1941
• Citation: 238 Wis. 63,298 N.W. 163
• Parties: HOLZWORTH et al. v. STATE et al.
• Court: Wisconsin Supreme Court

238 Wis. 63

298 N.W. 163

HOLZWORTH et al.

v.STATE et al.

Supreme Court of Wisconsin.

May 20, 1941.

Appeal from an order of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Reversed. Order reviewed on motion, affirmed.

This action was begun on April 25, 1940, by LeRoy Holzworth, a minor, by William J. Brown, guardian ad litem, and Jeanette Holzworth, plaintiffs, against the State of Wisconsin and the Regents of the University of Wisconsin, defendants, to recover damages alleged to have been sustained by LeRoy Holzworth on account of personal injuries on the 29th day of October, 1938. Each of the defendants demurred to the complaint. The demurrer of the defendant, Regents of the University of Wisconsin, was sustained and the demurrer of the defendant, State of Wisconsin, was overruled. From the order overruling the demurrer entered October 17, 1940, the defendant State of Wisconsin appeals.

On October 29, 1940, the plaintiff served a notice of review pursuant to sec. 274.12 of that part of the order sustaining the demurrer of the Regents of the University of Wisconsin.

There was a second cause of action on behalf of the plaintiff, Jeanette Holzworth as mother, on account of hospital, medical and other expenses incurred in the care of LeRoy Holzworth and on account of the diminished earning ability of the said LeRoy Holzworth due to his injuries.

The facts will be stated in the opinion.John E. Martin, Atty. Gen., and Warren H. Resh and William A. Platz, Asst. Attys. Gen., for appellants.

Rooney & Hillyer, of Madison, for respondents.

ROSENBERRY, Chief Justice.

From the pleadings it appears that the defendants own, operate and maintain the public building known as Camp Randall stadium, which seats approximately forty thousand people and is operated by the defendants for pecuniary profit; that the defendants are under a duty to comply with ch. 101, Wisconsin Stats., to construct, maintain and repair the said structure so as to render it safe; that on the 29th day of October, 1938, LeRoy Holzworth was a spectator at a football game; that while standing on the top of his seat the pressure of a crowd of people caused him to be pushed over the edge of an exit and to fall a distance of twelve feet sustaining serious and painful injuries; that said injuries were caused by the failure of the defendant to “so construct and maintain the said stadium so that the same would be safe”; that by reason of the fall the said LeRoy Holzworth sustained serious injuries to his damage in the sum of $25,000; that on the 18th day of August, 1939, a claim was submitted to the legislature, which claim was disallowed on the 12th day of September, 1939. It is conceded that no action can be maintained against the state unless the state has consented to be sued. The Constitution of the State of Wisconsin provides: Art. IV, sec. 27. “The legislature shall direct by law in what manner and in what courts suits may be brought against the state.”

Pursuant to this constitutional provision, the legislature enacted what is now sec. 285.01, the material part of which is as follows: “Upon the refusal of the legislature to allow a claim against the state the claimant may commence an action against the state by serving the summons and complaint” etc.

[1] This court has held in three cases that the word “claim” as used in sec. 285.01 applies only to claims which if valid render the state a debtor and not to equitable claims or claims for tort. Chicago, Milwaukee & St. P. Ry. Co. v. State, 1881, 53 Wis. 509, 10 N.W. 560;Houston v. State, 1898, 98 Wis. 481, 74 N.W. 111, 42 L.R.A. 39; Petition of Wausau Investment Co., 1916, 163 Wis. 283, 158 N.W. 81.

With respect to the meaning of the word “claim”, see, also, Payne v. Meisser, 1922, 176 Wis. 432, 187 N.W. 194,Will of Heinemann, 1930, 201 Wis. 484, 230 N.W. 698.

The trial court analyzed and severely criticized these and other decisions and declined to follow them for the following reasons:

“(1) The state is subject to the safe place statute, like any other owner of a building, because the statute expressly says so.

“(2) The state can be sued to enforce liability under the safe place statute, like any other owner, even though this does involve a tort claim; for a tort claim is still a ‘claim’ which may be presented to the legislature under 285.01 and, if disallowed, action maintained against the state thereon.

“Not to hold as we do would be to adopt the unique attitude that the state, though it is liable under the safe place statute just like any other owner, can not be sued upon this liability. In other words, the law gives the right but not the remedy. We cannot endorse that conclusion.”

The substance of sec. 285.01 was introduced into our law by ch. 249, Laws of 1850. From the adoption of that statute to the present time so far as our investigation goes no action has been maintained against the State of Wisconsin on account of liability growing out of tort committed by any officer or officers of the state. Not only that, none of the governmental agencies have been subject to liability for tort committed by its officers except in cases where it is specially so provided, the most notable instances being liability for injuries sustained by reason of defective highways, sidewalks and damage done by mobs. The principal ground upon which this liability is denied is that a sovereign is not liable under the doctrine of respondeat superior for the negligent acts of its officers. Apfelbacher v. State, ...