Pohland v. City of Sheboygan

• Decision Date: 10 June 1947
• Parties: POHLAND v. CITY OF SHEBOYGAN et al.
• Court: Wisconsin Supreme Court

251 Wis. 20

27 N.W.2d 736

POHLAND

v.CITY OF SHEBOYGAN et al.

Supreme Court of Wisconsin.

June 10, 1947.

Appeal from an order of the Circuit Court for Sheboygan County; Henry A. Detling Judge.

Affirmed.

Action at law by Carl Pohland against the City and the Hartford Accident and Indemnity Company, to recover for personal injuries alleged to have been sustained through maintenance of a public nuisance by the city. From an order sustaining demurrers to the complaint the plaintiff appeals. The facts are stated in the opinion.

Quarles, Spence & Quarles, of Milwaukee, and Werner, Clemens & Miller, of Sheboygan (Kenneth P. Grubb and Henry S. Reuss, both of Milwaukee, of counsel), for appellant.

Joseph W. Wilkus, City Atty., of Sheboygan (Jacob F. Federer, of Sheboygan, of counsel), for respondent City.

Buchen, Currie, Federer, Grote & Hesslink, of Sheboygan, for respondent Hartford Accident & Indemnity Co.

FOWLER, Justice.

The case is before us on separate demurrers to the complaint interposed by defendants City of Sheboygan and Hartford Accident and Indemnity Company. The ground of the action is that the city maintained a park for the use of its citizens for recreational purposes and maintained therein a toboggan slide; that the plaintiff while using the slide as an occupant of a toboggan was injured by reason of the toboggan running into an abandoned stone quarry situated in the park without barriers or guards to prevent toboggans from so running or posting warnings against the danger of so running; that the quarry without such guards constituted a public nuisance and rendered the City liable for the injuries sustained by the plaintiff, and rendered the Hartford Company liable under an indemnity policy issued by it to the City. The demurrers both were on the ground of the insufficiency of the facts stated and the Hartford Company's was on the additional ground of misjoinder because the Insurance Company's contract is one of indemnity and imposes no liability until after payment by the City or judgment against it. The trial court sustained the demurrers.

The provision of the instant policy, designated as ‘Owners', Landlords' and Tenants' Liability Policy’ is that the insurer agreed to pay on behalf of the City all sums the City should beome obligated to pay by reason of ‘liability’ imposed on the city for damages ‘because of bodily injury * * * caused by accident and arising out of the ownership, maintenance or use’ of the premises described ‘which were maintained for recreational purposes.'

The plaintiff contends that under Robb v. City of Milwaukee, 241 Wis. 432, 6 N.W.2d 222, the city is liable for creating a public nuisance. The Robb case, however, is distinguishable because the plaintiff was injured while walking on a public street. The nuisance theory applied in that case was based solely on the fact that the plaintiff was so walking when injured, and on the rule that anything that creates danger to one using a public street is a public nuisance. All the cases cited in support of the holding in the Robb case are such cases. The plaintiff in that case was not availing herself of the instrumentality maintained by the city for the pleasure and benefit of its citizens. The relation of governor and governed did not exist.

The instant plaintiff was availing himself of the slide maintained by the city and the relation of governor and governed did exist. He was in the same position as the boy drowned in the swimming pool involved in Virovatz v. City of Cudahy, 211 Wis. 357, 247 N.W. 341, and the child in Grinde v. City of Watertown, 232 Wis. 551, 288 N.W. 196, who was injured while using a slide for children. This case cannot be wangled under the Robb case by saying that the abandoned quarry being used as a swimming pool was a nuisance to users of the toboggan slide just the same as the ball park was to users of the adjacent sidewalk. The real basis of the claim for injury here is negligence for not guarding the quarry by a barrier reasonably sufficient to prevent sliding into the quarry and the exemption from liability while in performance of a governmental function applies. Cegelski v. City of Green Bay, 231 Wis. 89, 285 N.W. 343, is directly in point. The plaintiff in that case sought recovery for injuries sustained while using a toboggan slide maintained by the City of Green Bay. The court held that in maintaining the slide for the benefit of its citizens the city was exercising a governmental function, and that the doctrine of non-liability of a municipality for injuries sustained while the city was in the exercise of such function applied. It is contended that the fact that the thing complained of in the Cegelski case was not concealed and did not constitute a ‘trap’ distinguishes the instant case. But the hole in the swimming pool in the Virovatz case that caused the death of the user of the pool was concealed and constituted as much of a ‘trap’ as the thing here complained of and the nuisance theory was in that case expressly rejected.

Counsel for plaintiff relies strongly on Rogers v. Butler, 170 Tenn. 125, 92 S.W.2d 414, and Taylor v. Knox County Board of Education, 292 Ky. 767, 167 S.W.2d 700, 145 A.L.R. 1333. The Kentucky case is not in point. The Kentucky case is based on a statute authorizing school districts to take out indemnity contracts protecting the drivers of school buses and the district from liability for negligence of the drivers. The statute authorized a district to create a fund for payment of injuries to school children, and the district became liable to the extent of the fund. Before enactment of the statute there was no liability of municipalities for negligence of employees in performance of a governmental function although it had an indemnity policy protecting it from liability arising out of ownership or operation of school buses. Wallace v. Laurel County Board of Education, 287 Ky. 454, 153 S.W.2d 915.

The Tennessee case is not so readily distinguished. But that case is also based on statutes. The court in its opinion concedes that in operating its schools the defendant county was exercising a governmental function, and that ordinarily it...