Mustas v. Inland Const., Inc.

• Decision Date: 05 March 1963
• Parties: Harry MUSTAS, Plaintiff-Respondent, v. INLAND CONSTRUCTION, INC., a foreign corporation, Appellant, F. Rosenberg Elevator Co., et al., Interpleaded Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 95

120 N.W.2d 95

19 Wis.2d 194

Harry MUSTAS, Plaintiff-Respondent, v. INLAND CONSTRUCTION, INC., a foreign corporation, Appellant,

F. Rosenberg Elevator Co., et al., Interpleaded

Defendants-Respondents.

Supreme Court of Wisconsin.

March 5, 1963.

Rehearing Denied April 30, 1963.

See 121 N.W.2d 274.

Ray T. McCann, Milwaukee, for appellant.

Thomas P. Maras, Milwaukee, Otjen, Philipp & McFadyen, Milwaukee, of counsel, for plaintiff-respondent.

Foley, Sammond & Lardner, Gilbert Church, Milwaukee, for interpleaded defendant-respondent, F. Rosenberg Elevator Co.

Kluwin, Dunphy, Hankin & Hayes, Milwaukee, for interpleaded defendant-respondent Westinghouse Electric Corp.

BROWN, Chief Justice.

By this appeal the following issues are presented:

(1) Whether Mustas was a trespasser as a matter of law.

(2) Whether the negligence of Mustas was causal as a matter of law.

(3) Whether the place respondent Mustas fell was a place of employment of Westinghouse.

(4) Whether Inland is entitled to indemnity against either or both Westinghouse or Rosenberg.

(5) Whether the damages awarded by the trial court were excessive, notwithstanding the reduction of the jury award.

(1) Status of Mustas. The record shows the following circumstances surrounding the fall. On January 3, 1958, Harry Mustas, a truck driver for Lutz Sand & Gravel Co. (Lutz), a subcontractor of Inland, was directed by Lutz to deliver a five yard load of sand to Rosenberg at Mayfair Shopping Center located at the northeast corner of Highway 100 and West North Avenue, Wauwatosa, Wisconsin. Lutz told Mustas that the Rosenberg crew was working in the southwest portion of the Marshall Field building. He was given a delivery ticket which he testified showed him where to deliver the sand although the ticket was not produced in court.

The Marshall Field building was 300 feet east and west and about 100 feet north and south. There was an entrance on the north side of the building and one on the west side. Seventy-five feet opposite the entrance on the west side was located the Inland construction office. This construction office was midway along the Marshall Field building and was separated by a roadway area. The east entrance of the construction office was directly opposite the west entrance of the Marshall Field building.

The testimony is in conflict as to what occurred immediately after Mustas entered the shopping center area from Highway 100 and drove to the Marshall Field building. On direct examination Mustas testified that he parked the truck at the north end of the Marshall Field building and went into the north entrance. He stated he could not remember stopping at the Inland construction office or receiving any instructions from anyone there. On cross-examination he stated he was positive he did not stop at the Inland construction office. He specifically denied talking to anyone. However, he admitted on the cross-examination that his testimony on adverse examination that he could not recall whether the men at the construction office directed him exactly to where the Rosenberg people were working was true.

Certain portions of a deposition of Harold A. Kimball were introduced into evidence which conflicted with those statements of Mustas. Kimball, who was in the construction office that morning, recalled that Mustas came into the office and spoke to the secretary who called Kimball out of his office. He stated Mustas offered him the delivery ticket but he declined to sign it because the sand was for Rosenberg. He told Mustas that he would have to go out into the Marshall Field building, find their foreman, have him sign it and have him direct Mustas where to deliver the sand. When asked whether he gave Mustas specific instructions on how he should turn when he entered through the entranceway of the building Kimball replied:

'Yes, I told him to go in and go to the right to the southeast and he would see this here rig that they were drilling this well with. It was up above the floor possibly eight or ten feet.'

According to Kimball, he instructed Mustas to go through the west entrance of the Marshall Field building, the one just opposite that of the construction office. He directed Mustas from the construction office window facing the Marshall Field building.

In any event, Mustas went through the north entrance and observed the floor was rough concrete. Seeing a more brightly lighted area he walked about 150 feet toward that point. When he approached to within about 12 to 15 feet he encountered two men. He inquired whether they were Rosenberg employes. Eugene Borowski, one of these men, stated that they were Westinghouse employes and that the Rosenberg employes were working on the floor below. Mustas was then told by Borowski that he would have to go to the east side of the building and descend to a lower level. He turned, took two steps, slipped on an icy area and fell. He sustained injuries when his knee struck a concrete block that was frozen in the ice on the floor.

The usual status of Mustas as the employe of a subcontractor to Inland is a frequenter under the safe-place statute. Sec. 101.01(11), Stats. Neitzke v. Kraft-Phenix Dairies, Inc. (1934), 214 Wis. 441, 445, 253 N.W. 579; Morrison v. Steinfort (1948), 254 Wis. 89, 35 N.W.2d 335; Williams v. International Oil Co. (1954), 267 Wis. 227, 229, 64 N.W.2d 817; Frankovis v. Klug & Smith Co. (1957), 275 Wis. 156, 161, 81 N.W.2d 495; McNally v. Goodenough (1958), 5 Wis.2d 293, 300, 92 N.W.2d 890; Waskow v. Robert L. Reisinger & Co. (1923), 180 Wis. 537, 193 N.W. 357; Criswell v. Seaman Body Corp. (1940), 233 Wis. 606, 290 N.W. 177; Umnus v. Wisconsin Public Service Corp. (1952), 260 Wis. 433, 51 N.W.2d 42; Burmek v. Miller Brewing Co. (1961), 12 Wis.2d 405, 107 N.W.2d 583.

Mustas would have lost his status as such and would have become a trespasser if he went into an area to which he was neither expressly nor impliedly invited. Grossenbach v. Devonshire Realty Co. (1935), 218 Wis. 633, 638, 261 N.W. 742. If Mustas in fact received the instructions from Kimball, Mustas could not have been found to have been a frequenter.

In view of the nature of the testimony of Mustas which conflicts with the statements of Kimball in his deposition, the question is whether there is credible evidence to sustain the jury finding that Mustas was a frequenter. The statements of Kimball are positive evidence that he gave specific instructions to Mustas. Although Mustas testified he did not go into the construction office or speak with anyone there, he also stated that he could not recall whether he went there or spoke with anyone. Under these circumstances his testimony although positive in form is negative in effect. Ralph v. Chicago & Northwestern Railway Company (1873), 32 Wis. 177, 181; Anderson v. Horlick's Malted Milk Co. (1909), 137 Wis. 569, 574, 119 N.W. 342. The comparative weight of positive and negative testimony depends upon the credibility of the witnesses, and all the evidence is for the jury to consider. Conrardy v. Sheboygan County (1956), 273 Wis. 78, 82, 76 N.W.2d 560; Draper v. Baker (1884), 61 Wis. 450, 456, 21 N.W. 527. The court correctly charged the jury that positive testimony of credible witnesses to the matter was to be given greater weight than the negative testimony of equally credible witnesses to the same matter.

On appeal we accept that version of the evidence that is most favorable to the prevailing party. Rud v. McNamara (1960), 10 Wis.2d 41, 102 N.W.2d 248, [sec. 54.85], although contradicted by evidence which may have more weight [sec. 34.54]. Callaghan's Pleading & Practice. Therefore, assuming the credibility of Mustas' testimony, a reasonable inference can be drawn from it that he did not go into the construction office or speak with anyone there.

Appellant contends the trial court erroneously concluded that had Mustas not received such instructions the jury could infer he could reasonably proceed into the building for further instructions. It claims that conclusion was contrary to law and to the evidence.

There is credible evidence from which the jury could infer that Mustas was a frequenter if he did not receive any instructions. Mustas did not know the precise location of the Rosenberg crew or where to dump the sand when he entered the premises. Hence, he had the right to make a reasonable inquiry to seek this information. He was directed by Lutz that the crew was in the southwest portion of the Marshall Field building but it did not mention the floor. The record does not show he was directed to go to the construction office for more specific instructions. Mustas had never been to the Mayfair construction site before. He testified he did not see the construction office when he arrived there. Under these circumstances the jury could infer that Mustas would not lose his status as a frequenter if he made a reasonable search in the Marshall Field building. There is credible evidence indicating that the route Mustas took while in the Marshall Field building was reasonably incident to his inquiry. He entered the north entrance and walked on the rough concrete floor directly to the men working in a brightly lighted area. The area over which he walked was traveled over by other workers. Therefore, from all the evidence the jury could have found that Mustas was a frequenter.

The case of McNally v. Goodenough, supra, is relied upon by appellant as the authority for holding Mustas was a trespasser as a matter of law. In that case the plaintiff was repairing the roof of defendant's store. In order to ask the defendant what to do with certain things he descended the roof and went through the back door, walked through several rooms until he reached the main store, where he saw a clerk. After learning from the clerk that defendant was not present, plaintiff turned around and started to retrace his steps. He became confused and went through a door and into a dark...