Mennetti v. West Side Businessmen's Asso.

Action commenced on January 8, 1944, by Eddie Mennetti against the West Side Businessmen's Association for damages. The case was tried to the court and jury. Judgment was for plaintiff in the sum of $7,371.67. Defendant appeals.

The defendant, the West Side Businessmen's Association, through its representative, W. E. Goff, entered into an agreement with one Ben Bergor by which the latter agreed to furnish acrobatic acts for defendant's Victory Harvest Fair held in September of 1944. Under the contract, defendant was to furnish the stage, public-address system, dressing-room accommodations, music, and lights for the acts. Under this agreement, plaintiff was hired by Mr. Bergor to present a comedy act, known as a "table-rocking stunt." To perform the act, plaintiff arranges tables ranging from four to seven in number, depending on the size of the stage, one upon another with a chair placed on the top table. Plaintiff then sits on the chair and rocks the tables forward and back, eventually tipping them. As the tables fall backwards, the actor throws the chair, rides down with the top table and when about three or four feet from the floor, jumps, and does a back somersault. The act, as well as other acts arranged for by Mr. Bergor, required a substantial stage. The testimony shows that this was communicated to Mr. Goff and Mr. Gosling, cochairmen of the festival. The chairmen attempted to have one of their own members build a stage for the performance but were unsuccessful. Thereupon, it was decided to use a platform, already constructed by Mr. Guertin. This platform was about four feet in height, about thirty feet by thirty feet, supported by jacks made of two-by-four lumber. The floor was laid on two-by-six stringers, in twelve-foot sections, and nailed together so as to make stringers the length of the platform. The jacks were braced all around the outside of the stage and in the center. The jacks were placed between four and one-half and five feet apart. The floor of the platform was made of one-by-six matched hemlock. The one-by-six pieces were nailed to two-by-two stringers to make removable sections of floor between forty-three and forty-four inches wide and ten feet long. One layer of these sections was laid on the two-by-six stringers and nailed to the stringers. An additional layer of these sections was placed on the front part of the platform to make a double floor where the actors were to perform. Additional stringers were placed between the two layers of flooring and the top floor was fastened to the first floor by nails driven through the top floor and the stringers placed between the two layers of flooring.

On the afternoon of September 2d, the first day of the fair, plaintiff tested the platform and found it to be springy and weak. Thereupon, one of Mr. Guertin's employees attempted to improve the platform's stability. He put additional two-by-fours under the flooring and some additional stringers between the two sections. Plaintiff testified that this improved the stage but it was still not satisfactory. On Thursday evening, plaintiff had difficulty in performing his act because of the condition of the platform which caused his tables to "walk." He testified that the stage was not completely satisfactory for his purposes. On Friday evening, in the middle of the act, while plaintiff was holding the tables in balance on the two legs, there was a sudden lurch and the tables tipped backward, causing plaintiff to fall. He sustained the injury for which he brings this action. Immediately after the accident, witnesses noticed a hole in the platform about one and one-half feet from where the tables were set up when the act started. And the witness, Stanley Rich, testified that the hole was about a foot and a half from the right rear leg as plaintiff stood on the tables; and that plaintiff fell about five feet further to the right toward the backdrop, and away from where he would ordinarily fall.

In the instructions to the jury, the court said that defendant was the owner of the platform; that under the facts of the case plaintiff was a frequenter and that the platform was a place of employment. In a special verdict, the jury found that defendant had failed to furnish a platform as free from danger to, the safety of frequenters as the nature of the stage or platform, and the nature of the use to which it was put, would reasonably permit with respect to the strength of the floor; and that such failure was the natural cause of the fall of plaintiff. The faulty construction of the platform on which plaintiff was to perform his act is sufficiently established to sustain a finding that the platform was not safe. It is also evident that plaintiff's fall was due to a condition which developed because of existing defects. To escape liability, the defendant first contends that the structure is not a "place of employment." However, the use to which the platform was to be put and the relation of the men engaged there to the defendant's operation, resulted in creation by defendant of a place in which work to be done was under the control of an employer.

"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. . . ." Sec. 101.01 (1), Stats.

Here, the plaintiff was carrying on his business of providing entertainment for profit and, though his employment was merely temporary, it is as much the conducting of a business, trade, or industry as the more permanent operation of a theater or concert hall. If plaintiff was not an employee, and is to be classed as an independent contractor not subject to the direction or control of the defendant but merely under a contract to perform his act, he is still within the protected realm as a frequenter. The production of these vaudeville acts by the defendant entailed much more than the mere construction of a platform. By the contract binding upon defendant, it was required to furnish music, lights, and a public-address system. And there is testimony that an employee of the Harloff Electric Company, which installed the lights, and an employee of Mr. Fessler, who had the contract to install the sound system, were engaged in their occupations Thursday and Friday nights supervising the light and sound systems on and around the stage. The words, "place of employment" are descriptive. They furnish an outline of a definition and, as used in the statute, indicate a purpose to protect employees and lawful frequenters. Those words naturally carry the idea of a place necessarily used by one or more persons engaged in an enterprise for the purpose of gain or profit, direct or indirect. The platform being a place of employment, and the defendant as owner having the right of supervision, control, and custody of the platform, the defendant is liable to either a frequenter or employee for failing to maintain it in a safe condition. Waskow v. RobertL. Reisinger Co. (1923) 180 Wis. 537, 193 N.W. 357;Engel v. T.L. Smith Co. (1917) 164 Wis. 515,159 N.W. 728; Peschel v. Klug (1920), 170 Wis. 519, 175 N.W. 805.

The case of Waldman v. Young Men's Christian Asso. (1938) 227 Wis. 43, 277 N.W. 632, is clearly distinguishable from the case at bar. There, a boy, injured when struck by an improvised diving board in a swimming pool in the Young Men's Christian Association building, was denied recovery under the safe-place statute because the place was not one of employment. Here, the plaintiff was a professional entertainer presenting his act for the defendant association for the purpose of direct financial gain for himself and indirect benefit to the association through the advertising benefits the fair would confer. The employees of the electrical contractor and the radio company were there employed "for profit." And under the arrangement for the performance the plaintiff could be "required or directed by an employer" to be on duty at a given time and place. See sec. 101.01 (4), Stats. The place-of-employment doctrine under the statute applies.

The remaining questions relate to the sufficiency of the evidence in support of the verdict that defendant did not maintain the platform in a safe condition pursuant to sec. 101.06, Stats.; that such failure was the cause of the accident; and the charge that as a matter of law plaintiff was contributorily negligent.

As to the former, a review of the evidence satisfies us that the platform provided was weak and not adapted to the purposes for which it was to be used, and that the circumstances of the accident reasonably raise the inference that the accident was caused by the platform beneath the leg of plaintiff's table giving way and a sinking of the floor. The testimony of Stanley Rich, as previously set out, concerning the position of the hole in the floor in relation to the place where the tables were set up and the direction in which the tables fell when the accident occurred, justifies this inference.

As to the claim of contributory negligence, we are of the opinion expressed by the learned trial judge, under the facts established, that this amounts to nothing more than an allegation of assumption of risk. That defense under the "safeplace" statute is not available either against an employee or frequenter. Washburn v. Skogg (1931), 204 Wis. 29,233 N.W. 764, 235 N.W. 437; Bent v. Jonet (1934), 213 Wis. 635,252 N.W. 290; Neitzke v. Kraft-Phenix Dairies Inc., (1934) 214 Wis. 441, 253 N.W. 579.

By the Court. — Judgment affirmed.