Opinion
September 13, 1948. —
October 12, 1948.
APPEAL from an order of the circuit court for Marinette county: AROLD F. MURPHY, Circuit Judge. Affirmed.
For the appellants there was a brief by Benton, Bosser, Becker, Parnell Fulton of Appleton, and oral argument by David Fulton.
Norman B. Langill of Marinette, for the respondent.
The plaintiff commenced an action for damages for personal injuries sustained in a fall on the floor of defendants' restaurant. Defendants answered denying negligence in the maintenance of their premises, and examined the plaintiff before a court commissioner before trial. Upon affidavits prepared by one of the attorneys for the defendants, A. W. Parnell, and the affidavits of the defendants, the defendants moved for summary judgment of dismissal of plaintiff's complaint. The trial court entered an order denying the motion of the defendants, from which this appeal is taken.
The affidavit of A. W. Parnell incorporates questions and answers from the deposition of the plaintiff. These questions and answers disclose that the plaintiff, a young lady, had occasionally worked in the restaurant helping her mother; that on this particular day she stepped from the kitchen to the dining room, slipped and fell on the linoleum floor. She had walked over a piece of cardboard which lay on the floor at the kitchen door, but conceded that this had been safely passed and that she slipped on bare linoleum. After testifying that she saw no accumulation of wax, no oil or water or other foreign substance on the floor, she was asked:
" Q. Now, when you say in your complaint, that the floor was highly waxed, do you have reference to the linoleum floor? A. Yes.
" Q. Claim it was waxed? A. Yes.
" Q. When you talk about the floor being oily, what do you mean by that? A. The wax was oily. We have our floors waxed at home and they aren't like that. Whatever kind that was it was terrible.
" Q. Did you see any oil? A. No, it was a funny kind of wax.
" Q. When you talk about the floor being oily you have reference to the wax? A. Yes.
" Q. The floor being slippery you also have reference to the wax on the floor? A. Yes.
" Q. The floor being glassy you also have reference to the condition of the wax? A. Yes."
The defendants also offered in support of their motion for summary judgment the affidavit of Peter Becco and Mary Becco setting forth that they had operated the premises for a great many years, had always maintained it well, and that the floor wax used at the time complained of was of a standard brand and had been properly applied, and "That defendants know of their own knowledge that at the time of the alleged fall there was no defect in the linoleum covering and no foreign substance thereon, and that the condition of the wax was not such as to cause the plaintiff, or any other person, to slip or fall thereon." Mr. Parnell's affidavit concludes with these paragraphs:
"8. That plaintiff is wholly without proof that the linoleum floor of defendants' premises was in a hazardous or dangerous condition, and is wholly without proof that defendants' premises were not as free from danger as the nature of the premises reasonably permitted.
"9. That defendants have denied by verified answer all allegations of the plaintiff that their premises were unsafe.
"10. That plaintiff's alleged cause of action is based on her conclusions and has no factual support."
The trial court indicated that it was of the opinion that the defendants' motion presented a very close question and that if upon the trial the plaintiff's proofs were no more substantial, it might require a directed verdict for the defendants.
Appellants contend that it was error on the part of the trial court to deny the motion for summary judgment on this state of the record. Appellants rely strongly upon what was said by this court in Brown v. Appleton Masonic Temple Asso. (1943) 243 Wis. 147, 9 N.W.2d 637, to the effect that a mere waxing of a ballroom floor does not create a liability toward a user thereof who may fall on such slippery surface. Appellants also cite other cases to like effect upon the substantive law that the washing of a floor or usual and customary measures of preserving a floor open to the public do not make the owner liable under the safe-place statute.
We consider that a lengthy discussion of this phase of the law at this time would serve no purpose. The sole question presented is whether the indication by respondent that she herself is unable to testify as to anything which might spell out liability on the part of the appellants, is cause for the entry of a summary judgment dismissing her cause of action. We are mindful of the decision of this court that where by positive statements a plaintiff forecloses herself from any ability to recover on a stated cause of action, the defendant is entitled to summary judgment. Marco v. Whiting (1944), 244 Wis. 621, 12 N.W.2d 926. However, the purpose of the statute enabling parties to examine the adverse party under oath before trial is primarily to acquaint the examiner with the testimony that the party sworn will give at the trial so that he may be able to meet such testimony with counterproof. Here it is true that the respondent indicated she has no particular knowledge of anything which on its face shows a violation of the safe-place statute. However, the examination was not so conclusive as to preclude her from offering evidence of other witnesses on that point at the time of trial. Likewise, it must be borne in mind that when parties appear before a court commissioner to be examined adversely they are in a position where they answer only the questions submitted to them by opposing counsel. They are not expected to and in fact are not permitted, under the statute, to offer any positive proof. It certainly is not anticipated that a plaintiff must affirmatively establish a cause of action in adverse proceedings before a court commissioner or be, in effect, subject to a motion for nonsuit by means of the application of the summary-judgment statute. It appears that the trial court was correct in denying the appellants' motion for a summary judgment.
By the Court. — Order affirmed.