Miller v. Welworth Theatres of Wis.
| Decision Date | 06 March 1956 |
| Citation | 75 N.W.2d 286,272 Wis. 355 |
| Parties | Elva MILLER, Respondent, v. WELWORTH THEATRES OF WISCONSIN, a Foreign Corporation, Appellant. |
| Court | Wisconsin Supreme Court |
Lees & Bunge, J. C. McKenzie, John S. Coleman, La Crosse, for appellant.
Johns, Roraff, Pappas & Flaherty, La Crosse, for respondent.
The complaint of respondent, Elva Miller, alleges that the sidewalk was a place of employment, and the cause of action depends upon the presence of essential facts. Those facts, from which a plaintiff's primary right and a defendant's corresponding duty arise must appear in the statement of facts, together with the facts showing a wrong by defendant. In considering the sufficiency of the allegations of a complaint, the presumptions of law that surround an event must be taken into consideration and given due weight. When, under the rules applicable, the facts stated show that the plaintiff cannot recover, no cause of action has been stated. Sullivan v. Baker, 217 Wis. 306, 258 N.W. 617.
A demurrer, of course, admits all facts well pleaded in the complaint to which it is interposed, but it does not admit mere propositions of law which may be set forth therein. State ex rel. Veeder v. Collins, 5 Wis. 339. The rule is stated in Northwestern Mut. L. Ins. Co. v. State, 173 Wis. 119, 180 N.W. 138, 141 as follows:
'A demurrer to a complaint admits all the facts therein well pleaded, but it does not admit erroneous conclusions drawn from such facts by the pleader, even though the conclusions bear the semblance of statements of fact.'
See also Olsen v. Ortell, 264 Wis. 468, 59 N.W.2d 473.
The allegations in the respondent's complaint do no more than claim that, because a patron of the theatre must stand on the public sidewalk adjacent to said building in order to purchase an admission ticket and because it is then necessary for said purchaser to walk approximately ten feet to the north on said public sidewalk to reach the entrance of said theatre, the result is that the sidewalk becomes a part of the theatre's place of business, and the owner is required 'to construct and maintain said area in a condition safe for use by the plaintiff.' The conclusion rests on a non-existing duty. The complaint is demurrable because it does not state facts sufficient to constitute a cause of action. The effort to make it appear that the described area is a place of employment may be prompted by a wish, but it cannot rise above a conclusion on the pleader's part. The public sidewalk described cannot be translated into an employer's place of employment, because the responsibility of maintaining the sidewalk...
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