Watry v. Carmelite Sisters of the Divine Heart of Jesus

• Decision Date: 07 January 1957
• Citation: 274 Wis. 415,80 N.W.2d 397
• Parties: Mary WATRY, Appellant, v. CARMELITE SISTERS OF THE DIVINE HEART OF JESUS, a Wisconsin corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 397

80 N.W.2d 397

274 Wis. 415

Mary WATRY, Appellant, v. CARMELITE SISTERS OF THE DIVINE HEART OF JESUS, a Wisconsin corporation, Respondent.

Supreme Court of Wisconsin.

Jan. 7, 1957.

Rehearing Denied March 5, 1957.

Hanley & Wedemeyer, Milwaukee, William P. McGovern and Robert F. Cavanaugh, Milwaukee, of counsel, for appellant.

Lines, Spooner & Quarles, Milwaukee, James C. Mallien, Milwaukee, of counsel, for respondent.

BROWN, Justice.

Appellant does not challenge the conclusion that respondent's liability is that of an owner of a public building subject to such an owner's obligations under the Wisconsin Safe-Place Statute. The material parts of that statute are:

'Sec. 101.06 Employer's duty to furnish safe employment and place. * * * Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building, * * * as to render the same safe.'

The word 'safe' is defined in sec. 101.01(11), Stats.:

'The term 'safe' * * * as applied to * * * a public building, shall mean such freedom from danger to the life, health, safety or welfare of employes or frequenters, or the public, * * * as the nature of the employment, * * * or public building, will reasonably permit.'

Wilson v. Evangelical Lutheran Church, 1930, 202 Wis. 111, 230 N.W. 708, cited by appellant, did not touch on owner's obligations as master for the act or neglect of a servant. It held only that charitable corporations which are owners of public buildings are not exempt from the obligations imposed on owners, generally, by the safe-place statute. That we have held uniformly that the charitable corporation is not liable for the common-law negligence of its servants and agents is demonstrated by the following cases which are cited in appellant's brief to other points. Harnett v. St. Mary's Congregation, 1956, 271 Wis. 603, 607, 74 N.W.2d 382; Grabinski v. St. Francis Hospital, 1954, 266 Wis. 339, 342, 63 N.W.2d 693; Jaeger v. Evangelical Lutheran Holy Ghost Cong., 1935, 219 Wis. 209, 210, 262 N.W. 585. See also Baldwin v. St. Peter's Cong., 1953, 264 Wis. 626, 630, 60 N.W.2d 349, and Bachman v. Young Women's Christian Assoc., 1922, 179 Wis. 178, 180-181, 191 N.W. 751, 30 A.L.R. 448. Conceding, then, for the purpose of the argument that the janitor was negligent in absenting himself without providing a safeguard at the place where he was working, liability for the results of his negligence cannot be transferred to his employer, a charitable corporation, by the doctrine of respondeat superior. The liability, if any, must arise because the action of the employe, whether negligent or not, created a building which was unsafe within the terms of the statute.

In the contemplation of the statute the charitable corporation-owner is just like any other owner, so in our search for authority we need not confine ourselves to decisions dealing only with charitable corporations. In Holcomb v. Szymczyk, 1925, 186 Wis. 99, 202 N.W. 188, and Baldwin v. St. Peter's Cong., supra, we have held that a building is safe, within the meaning of the statute, if it is composed of propermaterials and is structurally safe and the statute does not apply to temporary conditions having no relation to the structure of the building or the materials of which it is composed. In the Holcomb case the owner was not liable when a platform became slippery from an accumulation of ice and plaintiff slipped, fell and was injured. In Grabinski v. St. Francis Hospital, supra, storm water blew into the building making the floor slippery and a frequenter was injured. We observed that the water on the floor was a temporary condition unrelated to the structure or the materials of which it was composed, and decided as we did in Holcomb.

In Jaeger v. Evangelical Lutheran Holy Ghost Cong., supra, we affirmed the obligation of an owner of a public building, in his duty of maintenance to prevent the floors from becoming oily, greasy and slippery. In Juul v. School District, 1918, 168 Wis. 111, 169 N.W. 309, 9 A.L.R. 904, a pupil fell over a pail containing hot water and chemicals to be used in cleaning the schoolroom floor. We held that 'maintain' especially when used in connection with 'construct' and 'repair' must be held to relate to some act more closely related to the structure of a building than the operations involved in keeping its floors clean. Cronce v. Schuetz, 1942, 239 Wis. 425, 1 N.W.2d 789, was an action by a frequenter against the owner of a building under safeplace statute. At the time and place of plaintiff's fall a cleaning woman was mopping the floor which was wet with soapy water and was slippery. The jury found the owner failed to maintain the hall in a safe condition. We reversed a judgment for plaintiff saying that no claim was made that the floor was defective, only that it was slippery. 'The Safe Place Statutes do not require the owner of the premises resorted to by the public to do the impossible or the unreasonable in maintaining its premises in a safe condition.' 231 Wis. at page 429, 1 N.W.2d at page 791. Also, 231 Wis. at page 431, 1 N.W.2d at page 792:

'Granting as we must that the scrubbing or mopping of the hallways in a public building is an indispensable act in the maintenance of the building, we think it cannot be held that the temporary wetting of the floor in the process of scrubbing or mopping, even though such a wet condition may tend to make the floor for the time being slippery, can be made the basis of liability against the owner * * *.'

As shown by the Juul and Cronce cases, supra, a plaintiff seeking recovery under the safe-place statute from the owner of a public building must do more than show that the hazard from which he suffered was caused by a maintenance activity. He must show, also, that the defect is not due to a mere temporary condition attendant upon that activity and that the operation of whose details he complains is connected to a reasonable degree with the safety of the structure or the materials of which it is composed. We consider that the excess wax momentarily present during the waxing operation is like the soapy water temporarily on the floor in the Cronce case and did not render the building unsafe within the meaning of sec. 101.06, Stats.

A caution must be noted, however, that respondent escapes liability in this action because it is a charitable corporation to whom in negligence matters the doctrine of respondeat superior does not apply. The ordinary owner of such a building on these facts would not be so fortunate.

Judgment affirmed.

CURRIE, Justice (dissenting).

I must respectfully dissent from the majority opinion herein because of my conclusion that a jury issue is presented as to whether the defendant corporation is liable...