Opinion
October 8, 1958 —
November 5, 1958.
APPEAL from a judgment of the circuit court for Milwaukee county: FRANCIS X. SWIETLIK, Circuit Judge. Affirmed.
For the appellant there was a brief by Raymond J. Moore, and oral argument by Raymond J. Moore and by Gary E. Moore, both of Milwaukee.
For the respondent there was a brief by Wickham, Borgelt, Skogstad Powell, attorneys, and Reuben W. Peterson, Jr., of counsel, all of Milwaukee, and oral argument by Mr. Peterson.
Action by the widow of Paul Bellmann to recover damages for his death. The accident that resulted in his death occurred in a building located at 2800 West Custer avenue in Milwaukee. The owner of the building is International Trading Company. The building was built in 1953 and upon its completion it was leased to the defendant by lease dated July 1, 1953.
The exact site of the accident is not well described in the record. The jury had a view of the premises so the court, jury, attorneys, and most of the witnesses were familiar with it. The site is described as an areaway and there is reference to a false ceiling.
So far as we can determine from the record there was an inclosed space located in one end of the building in which heating, ventilating, and other equipment were housed. The bottom of the space was inclosed by the false ceiling, consisting of plastic-covered fiber glass, which rested upon metal channels that were supported by wires suspended from the roof trusses. The width and length of the area are not given although it is indicated that one piece of equipment was located 30 feet from the entrance. Some of the heating and ventilating equipment, consisting of a heating coil, a plenum chamber, a blower section, a motor and blower wheels, were incased in a metal jacket. This equipment rested upon steel channels which were supported by metal rods attached to the roof trusses. In addition there were aluminum air ducts and water pipes connected with the sprinkler system. Pipes were installed running both in an east-west direction and a north-south direction. The height from the false ceiling to the roof was five and a half feet, which was reduced in places by the roof trusses and pipes and other equipment.
Entrance to the area was gained through an opening in the north wall two feet high by three feet wide. There was no floor in the area but there was a two-inch by 10-inch plank resting upon the steel channels that extended in a southerly direction. Located upon the south end of that plank and extending at an angle to the east was another 10-inch plank. The entrance was 14 feet above the floor and was reached by means of a ladder.
The heating and ventilating equipment was installed in the area by Lonn Brothers. Paul Bellmann was a foreman employed by them who had charge of the installation. Whenever there was trouble with this equipment the defendant called Lonn Brothers and they sent a workman, generally Bellmann, to make the necessary adjustments or repairs. Prior to the date of the accident the defendant had called Lonn Brothers and reported trouble with the heating equipment. Bellmann was sent to repair the same. On January 15, 1955, at about 10 a.m. Bellmann fell through the false ceiling, which admittedly would not support a man's weight. He struck his head on a table in the defendant's cafeteria beneath and sustained a skull fracture which caused his death five days later.
The action was based upon a violation of the safe-place statute, sec. 101.06. The issues were submitted to the jury by means of a special verdict and the jury found that the defendant failed to provide a place of employment which was as free from danger to the life and safety of frequenters as the nature of the employment and the place of employment would reasonably permit; that such failure was a cause of the fatal injuries sustained by Bellmann; and that the defendant had notice of, or in the exercise of ordinary care should have known of, such unsafe condition.
In addition to the amount of the funeral expenses, which were stipulated, the jury awarded $20,000 to the plaintiff for pecuniary loss and $5,000 for loss of society and companionship. The court reduced the amount of damages awarded to the statutory limits, viz.: $15,000 for pecuniary loss and $2,500 for loss of society and companionship plus the funeral expenses, and on February 14, 1958, judgment was entered in favor of the plaintiff and against the defendant in the sum of $18,651.50. The defendant appealed.
The defendant contends that the trial court committed prejudicial error by submitting to the jury a question as to the violation of the safe-place statute, sec. 101.06. It contends that the area was not a place of employment within the meaning of the statute in so far as the defendant is concerned. The defendant advances several arguments to support this contention.
It contends, among other things, that Bellmann should have been found contributorily negligent as a matter of law because he was in charge of the installation and had full knowledge of the conditions in the area where he went to work. Contributory negligence was pleaded in the answer as an affirmative defense. The record indicates that the defendant made an oral request to include a question on contributory negligence in the special verdict. This request was denied by the court. In its motions after verdict the defendant did not include the failure of the court to submit a question on contributory negligence as a ground for any relief. No such claim was made in the oral argument and it is not included in the conclusion of the defendant's brief wherein the relief sought here is summarized. Contributory negligence is not in issue here and a claim thereof does not support the contention that the first question in the special verdict should not have been submitted.
The defendant also argues that Lonn Brothers was given complete custody and control over the premises for the purpose of making the heating and ventilating installations during the construction; that no hazard existed when the area was turned over to Lonn Brothers and that the hazard, if any, was created by the employees of Lonn Brothers, including Bellmann. This is an attempt to bring the case under one rule announced in Potter v. Kenosha, 268 Wis. 361, 68 N.W.2d 4. The rule in that case was stated to be that, when an owner turns over to an independent contractor the complete control and custody of a safe place and then the contractor changes the premises and as a result a hazardous condition is created, the owner does not become liable under the safe-place statute to the contractor's employee injured as a consequence of such hazardous condition.
The situation here is entirely different. Lonn Brothers' contract was either with the owner or the general contractor and there is nothing in the record to indicate that as part of that contract Lonn Brothers should inclose the area or provide a safe runway, or that they did so.
It is also argued that the only purpose of the areaway was to hold the heating and ventilating equipment and various water pipes and there was no duty by the defendant to maintain the area as a place of employment since the risk was unknown to it. There was no reservation of anything in the lease. The defendant leased the entire premises. Its knowledge of the unsafe condition will be treated later in the opinion.
The defendant also attempts to shift the duty to provide a safe place of employment to the owner of the building under the terms of its lease. No attempt was made to interplead the building owner and the lease itself provides that the defendant shall save the owner harmless for any injury or loss of life occasioned by any present or future latent or other defect in the condition of said premises. The defendant had such right to possession, control, and dominion of the area as to make it directly liable under the decision in Potter v. Kenosha, supra.
The issue as to whether or not the defendant furnished a safe place of employment was the main issue in the case. It was raised by the pleadings. There was sufficient evidence to sustain an affirmative answer by the jury and there was no error on the part of the trial court in submitting the question.
It is next contended that the trial court committed prejudicial error by including in the special verdict a question with reference to notice to or knowledge by the defendant of the condition of the area. It contends that there was no notice, actual or constructive, to the defendant. We cannot agree.
The plant manager for the defendant testified at the trial. He testified that he had never gone into the area himself but that he had looked into the entrance during the daytime and that he needed a flashlight in order to see into the area; that he knew heating equipment was installed therein, and that it would be in order for Lonn Brothers to inspect the equipment in that area in case the heating plant was not working properly. This testimony was sufficient to sustain a finding by the jury that the defendant had actual knowledge of conditions within the area.
As to constructive notice, the testimony shows that the defendant had been the sole occupant of the building for more than a year and a half. It had called Lonn Brothers upon several occasions to repair or adjust its heating plant and it knew that a portion of such equipment was located within the area, and that it was in order for employees of Lonn Brothers to enter for the purpose of doing the work required. The defendant should have taken precautions to see that the place was as safe as the nature of employment and the place of employment would reasonably permit.
The defendant again refers to provisions in its lease. We do not believe those provisions are applicable. As we stated above, the defendant had such possession, control, and dominion over the premises that it was duty bound to furnish a safe place of employment even in this particular area.
The plaintiff called an engineer as a witness. He was qualified as an expert although his direct testimony was confined to certain measurements he had made in the area and observations he had made while he was taking the measurements. On cross-examination the witness was asked as an engineer with long years of practice if he would have constructed the type of access such as the planks which were found in the areaway. The court sustained plaintiff's objection to the question. The defendant also inquired of the engineer as to the custom in the community relative to illumination. The court sustained objections to such questions. Thereafter, in the absence of the jury, defendant's counsel informed the court that he intended to call an architect as an expert witness for the purpose of propounding questions in connection with the custom, usage, and practice followed in Milwaukee county in so far as furnishing lights and access by means of planking or a catwalk from the opening into the areaway in similar areas. The court stated it was of the opinion that this testimony would not be competent and if offered he would sustain an objection thereto. The defendant did not call the architect as a witness. The defendant now contends that the trial court committed reversible error in refusing to permit testimony as to the usage, custom, and practice in Milwaukee county in those regards. The defendant cites cases, most of which referred to public buildings and not to places of employment, or to actions based on common-law negligence, in which some testimony as to custom in the community had been permitted. We do not think the cases are pertinent. The areaway was obviously unsafe as a place of employment and the fact that other builders construct unsafe areas for the housing of equipment could not change the situation. The objections to the questions asked of the engineer were properly sustained and there was no actual offer of proof of what testimony would have been given by the architect had he been called.
Finally the defendant contends that the damages found by the jury are excessive, although it is not contended that the excessive awards were made because of the perversity of the jury. The jury did award damages in excess of the statutory limits for pecuniary loss and loss of society and companionship. The trial court reduced the amount of damages for those items to the statutory limits. The defendant contends that there should have been a further reduction, principally because there was evidence in the record that Bellmann had heart trouble. The record does show that Bellmann had suffered a heart attack and had been involved in an automobile accident. The record further discloses that he was fifty-four years of age at the time of his death; that his life expectancy was 18.09 years, and that he was earning $3 per hour; that he worked seven and eight hours a day five days a week. The life expectancy of the plaintiff was 14.10 years at the time of the trial. There was testimony as to their home life and the use made of Bellmann's earnings. Defendant contends that the life expectancy used was based on figures for a person in good health and not for one who had suffered a heart attack two and a half years prior to the date of his injury. We understand the life-expectancy tables are based upon averages and that there are no separate tables for determining the life expectancy of persons in good health and those in poor health. From the record we are convinced that the award of the statutory maximums was justified under the facts in this case. We can find no error in the trial.
By the Court. — Judgment affirmed.
MARTIN, C.J., and BROWN, J., took no part.