Szafranski v. Radetzky

Decision Date10 May 1966
Citation141 N.W.2d 902,31 Wis.2d 119
Parties, 23 A.L.R.3d 1071 Chester B. SZAFRANSKI et al., Appellants, v. Richard RADETZKY et al., Respondents.
CourtWisconsin Supreme Court

Roman H. Papka, Kersten & McKinnon, Milwaukee, Kenan J. Kersten, Milwaukee, of counsel, for appellants.

Ebert, Kuswa & Ebert, Milwaukee, for respondents.

HEFFERNAN, Justice.

I.

Jurisdiction of appeal

On oral argument, counsel for defendants moved to dismiss the appeal for lack of jurisdiction. It appears from the record that the order sustaining the defendants' demurrer was entered in July 1, 1965, and the plaintiff was given twenty days in which to file an amended complaint had On August 9, no amended complaint had been filed, and the defendants moved to dismiss. On September 30, an order was entered dismissing the complaint. The defendant takes the position that, since this order was not appealed, the present appeal is without jurisdiction and must be dismissed. However, a search of the record reveals additional facts that we deem controlling. The record indicates that on September 28, 1965, two days before the order of dismissal, the appellants perfected their appeal by serving a notice of appeal and a notice of undertaking upon the parties and filing those documents, together with the undertaking itself, with the clerk of circuit court as directed by sec. 274.11(1), (2), and (3), Stats. 1

Sec. 274.11(4), Stats., provides that this court has jurisdiction of the subject matter from the time of the entry of the appealable order in the trial court, in this case the order of July 1, 1965, and jurisdiction of the persons of the litigants from the time of the proper service and filing of the notice of appeal and undertaking. This latter step was completed two days before the order of dismissal, and it is therefore apparent that the circuit court was without jurisdiction to enter the order of dismissal.

Additionally, we have held that the submission of a brief in this court or otherwise participating in a review upon the merits constitutes a waiver of objection to jurisdiction over the person. Baumgarten v. Jones (1963), 21 Wis.2d 467, 470 124 N.W.2d 609; Town of Madison v. City of Madison (1960), 12 Wis.2d 100, 104, 106 N.W.2d 264; Asen v. Jos. Schlitz Brewing Co. (1960), 11 Wis.2d 594, 599, 106 N.W.2d 269. We pointed out in Rachlin v. Drath (1965), 26 Wis.2d 321, 325, 132 N.W.2d 581, the objection to the jurisdiction of this court may in the proper case of preserved by a motion to dismiss the appeal. The respondent did not make a timely motion to dismiss upon the grounds that are now alleged, 2 hence, though we were to find those grounds meritorious the objection to the jurisdiction would thereby be waived. We conclude that this appeal is properly before the court.

II.

Where the parties occupy the relationship of host and

invited social guest, did the hosts fail to exercise the

standard of care required by negligently storing gunpowder

on the premises in such quantities and under such

circumstances as to make it likely that a fire and explosion

would occur and did they fail to exercise ordinary care with

respect to the method and manner of storing and handling of

the gunpowder?

The facts alleged make it clear that the Szafranskis were the guests of Mr. and Mrs. Radetzky in their home. Though they were the invited guests, they were, in the parlance of tort law, not invitees, but licensees. 3

The duty of a possessor or owner of property with respect to those upon the property varies with the legal status of the person who suffers an injury on the premises. If the person is a trespasser, the owner of land has the duty to refrain from wilful and intentional injury. Shea v. Chicago, M., St. P. & P.R. Co. (1943), 243 Wis. 253, 257, 10 N.W.2d 135. He is not liable for injury to trespassers, as a general rule, caused by his failure to exercise reasonable care to put his land in safe condition for them, nor is he obliged to refrain from operations or activities that might cause injury (Prosser, Law of Torts (hornbook series, 3d ed.), p. 365, sec. 58) at least until the trespasser is discovered. 2 The Restatement of Torts, page 917, sec. 337, takes the position that there is a duty to warn known trespassers of highly dangerous conditions.

In general, the duty owed an invitee is that of ordinary care. Schroeder v. Great Atlantic & Pacific Tea Co. (1936), 220 Wis. 642, 645, 265 N.W. 559.

In the instant case, the Szafranskis were the social guests of the Radetzkys, and between them the duty owed was that of licensor to licensee. Cordula v. Dietrich (1960), 9 Wis.2d 211, 212, 101 N.W.2d 126.

The decisions of this court hold that the possessor or occupier of premises may be liable for injuries to the licensee in two situations. The licensor may be liable because the injury was caused by a 'trap' on the premises. Greenfield v. Miller (1921), 173 Wis. 184, 187, 180 N.W. 834, 12 A.L.R. 982; Cordula v. Dietrich (1960), 9 Wis.2d 211, 213, 101 N.W.2d 126; Brinilson v. Chicago & N.W.R. Co. (1911), 144 Wis. 614, 618, 129 N.W. 664, 32 L.R.A.,N.S., 359. He has, however, no obligation to the licensee in regard to dangers that are unknown to him.

The licensor may, also, be liable for injury to the licensee when the injury is caused by the active negligence of the licensor. Cermak v. Milwaukee Air Power Pump Co. (1927), 192 Wis. 44, 50, 211 N.W. 354; Taylor v. Northern Coal & Dock Co. (1915), 161 Wis. 223, 229, 152 N.W. 465; Muench v. Heinemann (1903), 119 Wis. 441, 447, 96 N.W. 880; Brinilson v. Chicago & N.W.R. Co. (1911), 144 Wis. 614, 618, 129 N.W. 664.

The question of 'trap' does not arise in this case. A 'trap' arises when the owner fails to disclose to the licensee a known but concealed danger. There is no allegation that there was any danger known to the defendants that was unknown to the plaintiffs. The complaint does allege that Richard was 'engaged in loading shells with said gunpowder to the knowledge and with the consent of the defendants * * *.' There was no 'trap.'

The question remains: Was the conduct alleged 'active' negligence? In Cermak, supra, the licensee was negligently hit on the head by a pipe wielded by the licensor's employee. In Taylor, supra, the licensee was struck by a coal hoist operated by defendant's agents. In Brinilson, supra, the licensee fell through a grating over a pit used for the discharge of steam in the conduct of the licensor's business.

The central thread of these cases carries the connotation expressed in Prosser, supra, page 388, sec. 60, of 'operations' carried on by the owner or occupier of the land:

'It is now generally held that as to any active operations which the occupier carries on, there is an obligation to exercise reasonable care fot the protection of a licensee. He must run his train, operate his machinery, or back his truck with due regard * * * that * * * the licensee may be present.'

2 Harper and James, The Law of Torts, p. 1476, sec. 27.11, expresses the rule:

"* * * in cases involving * * * active conduct, as distinguished from conditions of the premises, the landowner or possessor may be liable for failure to exercise ordinary care towards a licensee whose presence on the land is known or should reasonably be known to the owner or possessor."

Applying the tests of the cases and texts referred to above, it appears that the negligence complained of was of an active or operational type. The defendants are charged with negligence in the storing of gunpowder and in handling it without exercising ordinary care. This is active negligence. It should also be emphasized that while non-active or non-operational types of conduct do not give rise to liability, that once the conduct is determined to be of the active or operational kind, the standard of care is 'ordinary care.' Harper and James, supra, p. 1476; Prosser, supra, p. 388.

We therefore conclude that the complaint in respect to paragraphs (c) and (d) was sufficient to state a cause of action. The demurrer in that respect should have been overruled.

III.

Do the allegations that defendants violated Village of

Shorewood explosives licensing ordinance and industrial

commission order setting conditions for storage of

explosives state cause of action for negligence?

The Village of Shorewood ordinance prohibits under penalty the keeping of gunpowder without first obtaining a license from the chief of police. 4 The plaintiffs contend that the failure to obtain the required permit (a fact admitted by the demurrer) in itself constitutes a cause of action. Plaintiffs state that, 'where the law requires some particular thing to be done * * * to secure the personal safety of others, a failure to perform such duty constitutes actionable negligence. * * * ' We agree with this well accepted rule of law, but cannot conclude that the ordinance on its face was designed to secure the personal safety of others from injuries caused by the negligent explosion of gunpowder. It may well have been intended as a method of controlling or of being informed of the possession of explosives by persons of unlawful or criminal character. The statute did not prohibit the possession of gunpowder; rather, it allowed the possession and storage of gunpowder upon the obtaining of a permit. We do not perceive that under this ordinance, which sets no standards for storage or handling, and which prescribes no safety measures, the gunpowder would be less likely to explode had the possessor been issued a permit.

In Derr v. Chicago, M. & St. P.R. Co. (1916), 163 Wis, 234 239, 157 N.W. 753, we held that the fact that the plaintiff was driving an automobile that had not been registered, as required by the statutory regulation that no automobile shall be operated on any public highway unless it shall have been registered, did not preclude him from recovery since that fact had no causal relation to the injury.

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