Morrison v. Steinfort

^* Motion for rehearing denied, with $25 costs, on February 15, 1949. Action commenced October 14, 1947, by Buriel Morrison and Employers Mutual Liability Insurance Company of Wisconsin, plaintiffs, against Clemens J. Steinfort, a sole trader, doing business as Bruce Welding Company, and Edward Sikes, a sole trader, doing business as Sikes Garage, defendants, to recover for personal injuries suffered by the plaintiff Morrison. Defendant Steinfort moved to have the complaint made more definite and certain, which motion was denied by an order entered February 18, 1948. Defendant Sikes then moved to interplead the Wisconsin Bridge Iron Company as a party defendant, which motion was granted, and an amended complaint was served. Defendant Steinfort demurred to the amended complaint on the ground that several causes of action had been improperly united, and on June 5, 1948, an order was entered overruling the demurrer. Defendant Steinfort appeals from these two orders.

The amended complaint contained, among others, the following allegations: On August 26, 1946, the defendant Sikes was constructing a garage building on land owned by him at Delavan, Wisconsin. He had engaged Gunard A. Piehl, a contractor, to assist in the erection of said building. Piehl was insured by the Employers Mutual Liability Insurance Company of Wisconsin against liability under the terms of the Wisconsin Workmen's Compensation Act. The defendant Steinfort had been engaged to erect certain structural steel beams required in the construction of said garage. Defendant Steinfort had erected a derrick on said premises, which was equipped with a wooden boom, a winch, blocks, and a wire rope or cable. Plaintiff Morrison was a laborer employed by Piehl. On said date one of the steel beams was dropped, striking plaintiff Morrison and causing him severe injury; that Morrison's injuries were proximately caused by the failure of the defendants and each of them to furnish to plaintiff a safe place of employment and to furnish and use safety devices, and by other acts of negligence in the operation of said derrick. Only one of the questions sought to be raised is properly presented on this appeal. The order on the motion to make more definite and certain is not an appealable order under the provisions of sec. 274.33, Stats.

In support of his demurrer to the amended complaint, the appellant claims there was no duty on the part of Steinfort under the safe-place statute to furnish Morrison with a safe place to work because the relationship of employer and employee did not exist between them. We agree that Steinfort was not Morrison's employer. However, Morrison was a frequenter, and under sec. 101.06, Stats., every employer is required to furnish a place of employment which shall be safe for frequenters thereof as well as for employees. Neitzke v.Kraft-Phenix Dairies, Inc., (1934) 214 Wis. 441,253 N.W. 579; Sandeen v. Willow River Power Co. (1934) 214 Wis. 166,252 N.W. 706; Mickelson v. Cities Service Oil Co. (1947) 250 Wis. 1, 26 N.W.2d 264.

The plaintiff Employers Mutual seeks relief only through Morrison under sec. 102.29 of the statutes, so it is only the rights of Morrison which are involved in this controversy. Morrison is seeking to be compensated for the injuries he suffered as the result of the beam falling on him. But one injury is alleged, one primary right sought to be enforced and one subject of controversy presented. The alleged violations of the safe-place statute are not set up as a separate cause of action. In Holzworth v. State (1941), 238 Wis. 63, 68,298 N.W. 163, the court expressed the following rule:

"Sec. 101.06, Stats., does not create a cause of action in favor of or against anyone. It lays down a standard of care and if those to whom it applies violate the provisions of the statute, they are guilty of negligence."

We hold that the appellant's demurrer was properly overruled.

By the Court. — The appeal from the order denying the motion to make the complaint more definite and certain is dismissed, and the remaining order appealed from is affirmed.