Rudzinski v. Warner Theatres, Inc.

• Court: Wisconsin Supreme Court
• Writing for the Court: CURRIE; GORDON; I am authorized to state that FAIRCHILD
• Citation: Rudzinski v. Warner Theatres, Inc., 16 Wis.2d 241, 114 N.W.2d 466 (Wis. 1962)
• Decision Date: 03 April 1962
• Parties: Helen RUDZINSKI et al., Appellants, v. WARNER THEATRES, INC., a foreign corporation, Respondent.

Page 466

114 N.W.2d 466

16 Wis.2d 241

Helen RUDZINSKI et al., Appellants, v. WARNER THEATRES, INC., a foreign corporation, Respondent.

Supreme Court of Wisconsin.

April 3, 1962.

Action by plaintiffs Helen Rudzinksi and husband to recover damages from defendant Warner Theatres, Inc., which resulted from injuries sustained when Mrs. Rudzinski fell in defendant's movie theater.

Among other allegations, the complaint alleged a breach of the Safe Place Statute, sec. 101.06, Stats. The action was tried to a court and jury. At the conclusion of the testimony defendant moved for a directed verdict. This motion was granted by the court, and on February 28, 1961, judgment was entered dismissing the complaint. From this judgment plaintiffs have appealed. The facts will be stated in the opinion.

Phillips, Phillips, Hoffman & Lay, Milwaukee, for appellants.

Foley, Sammond & Lardner, John R. Collins, Milwaukee, for respondent.

CURRIE, Justice.

A verdict should only be directed against a plaintiff where plaintiff's evidence, giving it the most favorable construction it will reasonably bear, is insufficient to sustain a verdict in plaintiff's favor. Davis v. Skille (1961), 12 Wis.2d 482, 484, 107 N.W.2d 458; Western Casualty & Surety Co. v. Dairyland Mut. Ins. Co. (1956), 273 Wis. 349, 351, 77 N.W.2d 599. Therefore, we deem it only necessary to set forth the evidence favorable to plaintiffs.

Defendant's theater is located on the north side of Wisconsin Avenue, the main business street in the city of Milwaukee. It has three lobbies. The outer lobby is open to the street and might more properly be designated a vestibule. Five pairs of double doors open from this vestibule into the middle or center lobby which has a terrazzo floor. Another bank of five pairs of double doors lead therefrom into the inner lobby, which is carpeted.

The accident occurred at about 11:30 P.M. on October 10, 1957, as Mrs. Rudzinski was in the act of leaving the theater at the conclusion of the last run of the movie. That day the Milwaukee Braves had won the World Series and there were very few people in attendance at this theater, although there were crowds in the streets celebrating the Braves' victory. In attempting to leave the theater, Mrs. Rudzinski entered the middle lobby and tried to exit through the west pair of doors leading to the vestibule, but found these doors locked. An usher, seated on a stood near the center pair of outer doors, said to her, 'Center door, please.' Mrs. Rudzinski then turned, walked a few steps towards the center pair of doors, and fell.

Upon examination at the trial, she was asked if she knew what caused her fall. She responded: 'Well, there were slippery and wet spots all around, scattered.' She also testified that after the fall she found sticky, dirty spots on her coat and stockings, which she identified as 'beer spots' because of the odor. While she had not observed any wet spots on the terrazzo floor before the fall, afterwards she saw several spots in the vicinity. She estimated that these spots had circumferences of about 18 inches each. Plaintiff's theory is that these wet spots came from beer thrown or spilled by people celebrating the Braves World Series triumph. However, there is no evidence that this occurred. The evidence adduced by the defendant is all to the effect that there were no wet spots on the center lobby floor at the time Mrs. Rudzinski fell.

From the foregoing evidence, a jury could find that there were wet spots on the terrazzo floor at the place where Mrs. Rudzinski fell. Furthermore, the jury could reasonably infer that one of these spots caused her to slip and fall. However, this does not afford a sufficient basis to permit recovery by plaintiffs in the absence of actual or constructive notice to defendant of the existence of these spots prior to the accident. The memorandum opinion of the learned trial court makes it clear that the verdict was directed against plaintiffs on the ground that there was no evidence which would sustain a finding of actual or constructive notice.

On this appeal plaintiffs advance these two contentions:

(1) The court excluded evidence of a post accident conversation, between an usher and a janitor, which constituted an admission of actual notice on the part of the usher which would be binding upon defendant; and

(2) There was sufficient evidence adduced by plaintiffs upon which a jury could base a finding of constructive notice.

Admission of Employee

Mrs. Rudzinski testified that she was rendered semi-conscious and dazed by the fall and that afterwards two men, presumably ushers, picked her up, placed her on a stool, and brushed off her clothes. Upon the request of usher Kuntz one of the girl employees brought Mrs. Rudzinski a glass of water. Kuntz then asked her if she wanted to go to a hospital and she replied in the negative. He then advised her to see her doctor the next day and gave her a slip containing Kuntz's name and defendant's telephone number. Kuntz requested that she phone him and then see the doctor. Mrs. Rudzinski then noticed a janitor mopping up the floor.

Plaintiffs' counsel sought to question her about a statement Kuntz allegedly made to this janitor, but the court sustained an objection thereto. An offer of proof as to this statement was then made in the form of questions put to Mrs. Rudzinski and her answers thereto. In this offer of proof, she testified that Kuntz stated to the janitor: 'Now you come when it's too late, after someone falls. Why didn't you come a half hour ago when I called you?', and that the janitor made no response. If this excluded testimony had been admitted it would have given rise to the inference that Kuntz had actual notice of the wet spots on the center lobby floor approximately one-half hour before the accident. Kuntz later denied having had any conversation with a janitor.

Plaintiffs maintain that the excluded statement was admissible both as an admission of an agent, binding his principal, the defendant, and because it constituted part of the res gestae.

In order for an agent's statement to be admissible against his principal, it must have been spoken within the scope of the authority of the agent to speak for the principal. Jones, Evidence (5th ed.), p. 669, sec. 355; McCormick, Evidence, [16 Wis.2d 246] p. 518, sec. 244; 2 Restatement, Agency (2d) p. 6, sec. 286. This principle was applied in an opinion by Mr. Justice Wickhem, Hamilton v. Reinemann (1940), 233 Wis. 572, 577, 290 N.W. 194, and seven earlier Wisconsin decisions were cited in support thereof. Professor Edmund M. Morgan, in 2 Basic Problems of Evidence, p. 236, states: 'It is necessary to distinguish sharply between authority to do an act or to deal with a specified matter and authority to talk about it. The latter is usually a requisite of admissibility of statements made by the agent.'

The authority to speak for the principal may, of course, be implied, and usually the implications of the relationship furnish the basis for the authority. Jones, Evidence (5th ed.), p. 669, sec. 355, footnote 17 and cases cited therein. However, in the instant case no foundation of agency was laid from which such an implication could be drawn. Also, the evidence is undisputed that it was not part of the duties of Kuntz to direct the work of the janitors in the theater. Therefore, there was neither express nor implied authority on his part to speak for defendant in the matter.

There is a further compelling reason why the excluded statement is not admissible as an admission binding the defendant. This is because it was a statement made by one employee to a fellow employee. 2 Restatement, Agency (2d), p. 9, sec. 287, lays down the rule that statements made by an agent to his principal, or to another agent of the principal, are not admissible as admissions. The Comment accompanying this section states that:

'Statements of agents which the principal has authorized to be made to third persons are admissible against him under the same circumstances as those made by himself, since if the principal is willing to give them to the world it is not unfair that they should be subsequently used against him. On the other hand, statements made by the agent to the principal or to other agents are statements which the principal does not intend to be given to the world or to be considered as his statements. He does not in any way vouch for their truth. The historical fiction of the identity of principal and agent is not operative in transactions between them.' Ibid., Comment a.

We turn now to the question of whether the alleged statement was admissible as part of the res gestae. While this state has not adopted the American Law Institute Model Code of Evidence, we deem that Rule 512 thereof states the law of Wisconsin with respect to statements admissible under the concept of res gestae. Rule 512 states:

'Evidence of a hearsay statement is admissible if the judge finds that the hearsay statement was made (a) while the declarant was perceiving the event or condition which the statement narrates or describes or explains, or immediately thereafter; or (b) while the declarant was under the stress of a nervous excitement caused by his perception of the event or condition which the statement narrates or describes or explains.'

In a 1951 decision, this court stated the Wisconsin rule in similar terms: 'It is generally held that to be part of the res gestae the declaration must be contemporaneous with the act or transaction. In some cases spontaneity of the declaration is considered a substitute for the time element.' Krasno v. Brace (1951), 259 Wis. 12, 15, 47 N.W.2d 314, 316.

In stating that spontaneity of the declaration may be a substitute for the time element, this court undoubtedly was referring to a situation where the witnessing of a startling event had caused such shock to the witness that his statement shortly after the event was spontaneous and...