Opinion
June 7, 1949. —
July 12, 1949.
APPEAL from an order of the circuit court for Rock county: JESSE EARLE, Circuit Judge. Reversed.
For the appellant there was a brief by Robert J. Cunningham, attorney, and Dougherty, Grubb, Ryan Moss of counsel, and oral argument by John C. Wickhem, all of Janesville.
For the respondent there was a brief by McGowan, Geffs, Geffs Block of Janesville, and oral argument by Jacob Geffs and Eli Block.
Personal injuries. This action was commenced on September 29, 1947, by Fred O. Kirchoff, plaintiff, vs. city of Janesville, defendant, to recover damages for an injury sustained by the plaintiff alleged to be due to the negligence of the defendant. The defendant demurred to the plaintiff's complaint.
In his complaint the plaintiff alleges that the defendant city Janesville, a municipal corporation, maintains and operates a school known as the Janesville Vocational School. That at the time of the injury sustained by the plaintiff, the plaintiff was enrolled in the said Janesville Vocational School the purpose of receiving instruction in woodworking; that during said instruction periods plaintiff was at times required to operate a certain dangerous machine in said vocational-school shop, with rapidly revolving and unguarded gearing, and other machinery, called a wood planer; that on the evening of the 15th day of October, 1946, while plaintiff was engaged during an instruction period in the operation of said wood-planing machine, and in performance of his duty under said course of instruction in said vocational-school machine shop, which was and is situated at what is commonly described as 526 S. River street, Janesville, Wisconsin, and while in the course of his employment, as hereinafter set forth, plaintiff was in the exercise of due care, and wholly on account of the negligence of the defendant, its servants and employees, in the course of their employment as hereinafter set out, his right hand and arm was caught in said defective and unguarded gearing and machinery and was severed below the elbow. That said injury to the plaintiff was caused by the negligence the said defendant city and its employees and servants in the course of their employment, in this:
(1) Failure of said defendant to provide a place safe for the said plaintiff while engaged in the operation of said wood-planing machine, as required by sec. 101.06 of the Wisconsin statutes.
(2) Failure of said defendant to provide, adopt, and use methods and processes reasonably adequate to protect the health, safety, and welfare of the plaintiff at the time and place of said injury.
(3) Failure of the defendant to furnish, provide, and use adequate safety devices and safeguards at the time and place of injury to the plaintiff, and prior thereto, reasonably adequate to render said place and machine safe.
(4) Failure of said defendant to provide a safe and usable wood-planing machine and to properly safeguard said machine to prevent such injuries as the plaintiff received at said time and place.
(5) Failure of the defendant to instruct the plaintiff in the proper manner of operating said machine, and to warn him of the danger incident to said operation.
(6) Failure of the defendant to have installed and in working order on the said machine proper devices to brake and stop the working parts of said machine adequately and to disconnect the power.
(7) Failure of the defendant to do every other thing reasonably necessary to protect the health, safety, and welfare of the plaintiff at said time and place.
That the aforesaid acts of negligence of the defendant were the proximate cause of the injuries and damages sustained by the plaintiff herein; that by reason of the accident aforesaid, plaintiff was a long time sick, sore, and disabled, suffered great pain and mental anguish, and was for a long period of time confined to the hospital; that he was obliged to and did incur medical and hospital expenses at a great outlay of money; that he was unable to pursue his employment for a long period of time, and thereby suffered the loss of a large amount of wages; that he has become permanently disabled and suffered, and still continues to suffer and will in the future, as he is informed and believes, continue to suffer great pain, mental anguish, and humiliation; that by reason of the said permanent disability sustained by the plaintiff his earnings will be substantially reduced, as he is informed and believes; all to his damage in the sum of $30,000.
It is further alleged that a claim was duly filed and presented to the common council on the 3d day of March, 1947; that more than sixty days have elapsed but the said common council has failed to allow or disallow in whole or in part or to pass upon said claim. The demurrer was on the ground that the complaint did not state facts sufficient to constitute a cause of action. By order entered on the 10th day of November, 1948, the court overruled the demurrer, from which order the defendant appeals.
The trial court overruled the demurrer on the ground, —
"That cities and school districts, as owners and operators of public buildings, which includes a school building, should be subject to the safe-place statute regardless of whether at the time of the accident they were acting in a proprietory or governmental capacity, and that a city or school district may be liable to a frequenter who is injured in one of their buildings, when such injury is proximately caused by a lack of safety, as defined by law, in either unsafe construction or unsafe maintenance." See Heiden v. Milwaukee (1937), 226 Wis. 92, 275 N.W. 922.
The injuries complained of in the Heiden Case were sustained by the plaintiff as result of her falling down certain steps in the basement corridor of a school building owned by the city of Milwaukee. The building was alleged to be unsafe because it was not properly lighted at the point where the injury was sustained. The plaintiff had gone to the building for the purpose of attending school exercises.
In this case it is clear that the injuries complained of by the plaintiff were not due to any unsafe condition in the school building. The defect complained of in this case is a defect in a machine in a building. Therefore unless the plaintiff was injured in a place of employment the statute has no application.
A place of employment is defined by sec. 101.01(1), Stats., as follows:
"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 business, is carried on, and where any person is, directly or indirectly, employed by another for direct or indirect gain or profit. . . ." (Exceptions not material.)
The term "frequenter" is defined by sec. 101.01(5), Stats., as follows:
"The term `frequenter' shall mean and include every person, other than an employee, who may go in or be in a place of employment or public building under circumstances which render him other than a trespasser."
It is the contention of the plaintiff that he was a frequenter in a place of employment.
It is also clear from the provisions of the statute that unless the defendant was an employer the plaintiff was not an employee and the place where he was injured was not a place of employment.
If the contention of the plaintiff is sound then every schoolroom is a place of employment and every pupil is a frequenter, and the city or state maintaining the school, although acting in a governmental capacity, is liable for injuries sustained while in the course of receiving instruction. There is nothing in the safe-place statute which indicates that the legislature intended any such result. A person receiving instruction in a public school, whether the person be a minor or an adult, is not an employee and the place where he receives instruction is not a place of employment.
The plaintiff seeks to sustain his position by reference to the work entitled "What is Vocational Education?" by George E. Fern. We find nothing in the reference made to this work nor in the cases which support the plaintiff's contention, that the place where the plaintiff was receiving instruction in the vocational school was a place of employment.
The fact that as an incidence to carrying on the work of the vocational school some of the material upon which students work is salable and is sold has no bearing upon the question before us. The authorities cited by the plaintiff indicate that the purpose of the vocational school is not the production of marketable goods but is for the purpose of enabling the persons who attend to increase their ability and efficiency as workmen, not in the school but in places where they may thereafter be employed. The production of salable articles is merely a necessary result of giving vocational instruction. The place where it is given is not a place where an "industry, trade, or business, is carried on," and hence is not a "place of employment." Cegelski v. Green Bay (1939), 231 Wis. 89, 285 N.W. 343.
It is not necessary to cite authority to support the proposition that the defendant was engaged in the discharge of a governmental function and therefore not liable for the negligence of its employees engaged in the discharge of that function.
By the Court. — The order appealed from is reversed and cause remanded for further proceedings according to law.