Klemens v. Morrow Milling Co.

Eschweiler, J. The safe-place employment statutes quoted above have undoubtedly broadened the field of those to whom there is and was a common-law duty to keep such premises as are here involved reasonably safe so as to now protect and include those upon such premises under the rights belonging to the class described under the somewhat vague and indefinite term of “licensees.” Plaintiff contends that he was at the time of the injury such a licensee, that is, there with the implied consent of the defendant Milling Company, or that at least the court should not have disposed of such question as a matter of law, as it did, but should have submitted to the jury a question framed so as to require them to determine whether or not, under the facts and circumstances, the plaintiff was a frequenter or a mere trespasser. It is urged in that behalf that -the testimony showed such' a known customary use of said premises by others than plaintiff sufficient to support a finding of a jury that the plaintiff was within the class of licensees rather than that of trespassers. The record, however, discloses that most of the testimony relied upon by plaintiff appellant as to the former use of such elevator was admitted as against the defendant Top-hooven, plaintiff’s employer, only, and while the action was still pending as to him, and mostly as to a period prior to the ownership and occupancy of the premises by the defendant corporation. Even were the testimony so received admissible as against defendant respondent, a point which it is not now necessary to pass upon and which is therefore not decided, still it is not sufficient, in our judgment, as a basis for a conclusion by a jury that there had been a customary use of the premises-for such purposes, ahd known [619] to defendant, as plaintiff was making at the time of the injury. It had been used by persons other than employees of the company operating the mill, such as those representing insurance companies for the purpose of inspection; those seeking employment in the mill; and those seeking proper or necessary information Trom employees or foremen on such premises. As against the respondent, Tophooven clearly had no authority or power to invite the plaintiff into the mill building or to get upon the elevator. There was no invitation, express or, implied, extended to plaintiff by respondent on this occasion or for such purpose. There was nothing about plaintiff’s employment as helper to Top-hooven in the mason work on the wall of the boiler room making it necessary or convenient for plaintiff to enter the mill building or that would require defendant to anticipate his so doing; post notices warning plaintiff not so to do, or to take other steps to guard against plaintiff so doing. He was there solely for his own pleasure, purpose, and convenience. He must be deemed, under the facts and circumstances in this case, to have been a trespasser at the time of the injury and to be doing what he did as an invasion of the owner’s rights of possession and privacy on his own premises. Such an invasion of the owner’s rights is a trespass irrespective of what may have been the intentions of him who so invades the premises. The act is none the less a trespass though it be done innocently and without any wilful intent to harm or violate the owner’s rights. 29 Cyc. 444; Zartner v. George, 156 Wis. 131, 145 N. W. 971. The trial court was right in his disposition of the case upon this point, and it makes it therefore unnecessary to consider the other questions raised and discussed. By the Court. — Judgment affirmed.