U.S. Fid. & Guar. Co. v. Christiansen

• Decision Date: 08 March 1927
• Citation: 193 Wis. 1,212 N.W. 660
• Court: Wisconsin Supreme Court
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. CHRISTIANSEN & BERNETT.

193 Wis. 1

212 N.W. 660

UNITED STATES FIDELITY & GUARANTY CO.

v.CHRISTIANSEN & BERNETT.^a1

Supreme Court of Wisconsin.

March 8, 1927.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Action by the United States Fidelity & Guaranty Company against Christiansen & Bernett and Robert Bernett, surviving member of the partnership. From a judgment for plaintiff, last-named defendant appeals. Reversed.--[By Editorial Staff.]

Action to recover damages based on negligence. The plaintiff issued a compensation insurance policy to Karl H. De Sombre, who was employed by Christiansen & Bernett to dig a sewer trench. C. D. Percy, an employee of De Sombre, in the course of his employment, accidentally came to his death by being caught in a cave-in of the sewer trench which De Sombre was excavating. Percy was seeking to rescue Christiansen, who was in the trench at the time, from imminent peril. Plaintiff paid the compensation to Percy's widow under an award of the Industrial Commission, and then brought this action against Bernett as surviving partner of the firm of Christiansen & Bernett, claiming the right to subrogation by virtue of the Compensation Act, to the action in tort which the widow had against such partner.

At the trial a demurrer ore tenus was interposed to the complaint, which was overruled. The case was submitted to a jury, which rendered a special verdict as follows:

“(1) Did the nature of the material through which the ditch passed at the place of the cavein, under all the circumstances present, require shoring of the ditch walls in order to render the place where Mr. Christiansen was working a reasonable safe place in which to work? Answer: Yes.

If to (1) you answer ‘Yes,’ answer (2):

(2) Was the want of shoring the proximate cause of Mr. Percy's death? Answer: Yes.

(3) Was there any want of ordinary care on the part of Mr. Percy in going to Mr. Christiansen's rescue? Answer: No,”

--and assessed damages of $5,000.

From the judgment in plaintiff's favor, defendant appealed, and assigns as errors: That the trial court erred in overruling the demurrer ore tenus to the complaint as not stating facts sufficient to constitute a cause of action; that the court erred in denying defendant's motion for directed verdict and defendant's motions for judgment notwithstanding the verdict; and the trial court erred in instructions to the jury.Richmond, Jackman, Wilkie & Toebaas, of Madison, and C. F. Van Pelt, of Fond du Lac, for appellant.

Duffy & Duffy, of Fond du Lac, for respondent.

CROWNHART, J.

Coming directly to the merits of the action, the facts may be briefly stated:

Christiansen & Bernett were partners, having a contract to build a sewer for the city of Fond du Lac. They employed De Sombre, who owned a ditching machine, to dig and back fill the sewer trench, at a specified price per lineal foot. November 21, 1923, De Sombre began his operations, and had dug about 30 feet of trench when the accident happened. Christiansen was in the trench, about 10 feet back of the digging machine. The machine could dig about 12 feet deep, and at the place where it was operating the trench had to be somewhat deeper. Christiansen was digging to the required depth, and throwing the dirt into the machine to be elevated, when a cave-in deposited dirt around his legs and held him fast. He called for help, and Percy responded. A second cave-in followed, and both men were covered with earth, causing their death.

The respondent insurance company claims that Christiansen & Bernett were negligent in failing to shore up the sides of the trench to prevent such an accident. It claims that the partnership neglected to furnish a safe place of employment, as required by law. The jury so found. The appellant contends that the trench was not a “place of employment” within the definition of that term found in the Industrial Commission Act, subdivision 1, § 101.01, Stats., which reads as follows:

“(1) The phrase ‘place of employment’ shall mean and include every place, whether indoors or out or underground and the premises appurtenant thereto where either temporarily or permanently any industry, trade or business is carried on, or where any process or operation, directly or indirectly related to any industry, trade or...