Freimann v. Cumming

Eschweiuer, J. No question is raised but that this par-, ticular building is a public building within the purview of the safe-place statute here invoked and as defined in sub. (12), sec. 101.01, Stats. Unless, however, the defendant Cumming is within the definition of the word “owner” as the same is used in the same law, it is conceded there can be no recovery as against him. The material part of the statute upon which plaintiff predicates her right to recover as against respondent is found in [90] sub. (13),' sec. 101.01, providing that the term “owner” shall mean and include every person “having otvnership, control, or custody of any” public building. Appellant contended that this statute creates or recognizes a possible joint or several liability on at least three separate and distinct classes: first, those who are the owners; second, those having control thereof; and third, those having a mere custody of the premises. Appellant further maintains that respondent, admittedly the holder of the legal and record title, comes within the first of such alleged classes and under the asserted facts is subject to the statutory liability independent of any possible statutory or common-law liability of the other defendant, who concededly has the right to, as well as the actual possession of and the right to, and the actual control and custody of, the premises. Appellant’s counsel frankly admits that under repeated holdings of this court the doctrine is well established here that as between themselves the grantor in such a land contract holds the title in trust for the grantee with the right, in proper equitable proceedings, to foreclose or bar the rights of the grantee or enforce grantor’s rights in and to the real estate as security for the obligations assumed by the grantee. It is also frankly conceded that a rule of law exists here, at least except for the statute now invoked, which would absolve respondent from liability in analogy with the doctrine so often declared in cases involving the question of liability of landlord or. tenant, as is well illustrated in the case of Flood v. Pabst B. Co. 158 Wis. 626, 149 N. W. 489. Notwithstanding such necessary concessions, plaintiff nevertheless maintains that respondent’s interest in the real estate is sufficient to make him, under this statute, liable as the “owner” of the premises. The precise question here presented has not as yet been passed upon by this court. In Waskow v. Robert L. Reisinger & Co. 180 Wis. 537, 193 N. W. 357, involving the question of liability during the erection of a building under [91] several independent contracts with the owner, it was stated at page 544 that it was unnecessary, under the facts there, to determine >whether mere naked ownership of the property was sufficient under this same statute to create a liability against such owner to an injured employee of one of such contractors. Considering the language and general purpose of this statute, we now hold that in order to place such a liability as is here claimed against one as the owner of such premises there must exist in such person the right to present possession or present control or dominion thereover so that such person may lawfully exercise the rights necessary to permit him to properly enter upon the premises in order to perform such an ever-present duty as is fixed by this statute. A present right of possession is necessarily involved in the idea of a present duty to make repairs or changes. To charge respondent in this case with the duty and obligation of continuous supervision, control, and repair of these premises would require the respondent to deny or supersede the power of present supervision, control, and possession exclusively and lawfully vested by respondent in defendant Newland by their lawful and valid land contract. We therefore hold that the respondent does not come within the term “owner” as used in the statute above quoted, because not having any present lawful right to possession, control, or custody in or over this building. The plaintiff’s demurrer to the answer of the defendant Cumming was therefore properly overruled by the trial court. By the Court.- — Order affirmed.