BROWN, C. J.
By this appeal the following issues are presented:
(1) Whether Mustas was a trespasser as a matter of law.
(2) Whether the negligence of Mustas was causal as a matter of law.
(3) Whether the place respondent Mustas fell was a place of employment of Westinghouse.
(4) Whether Inland is entitled to indemnity against either or both Westinghouse or Rosenberg.
(1) Status of Mustas. The record shows the following circumstances surrounding the fall. On January 3, 1958, Harry Mustas, a truck driver for Lutz Sand & Gravel Company (Lutz), a subcontractor of Inland, was directed by Lutz to deliver a five-yard load of sand to Rosenberg at Mayfair Shopping Center located at the northeast corner of Highway 100 and West North avenue, Wauwatosa, Wisconsin. Lutz told Mustas that the Rosenberg crew was working in the southwest portion of the Marshall Field building. He was given a delivery ticket which he testified showed him where to deliver the sand although the ticket was not produced in court.
The Marshall Field building was 300 feet east and west and about 100 feet north and south. There was an entrance on the north side of the building and one on the west side. Seventy-five feet opposite the entrance on the west side was located the Inland construction office. This construction office was midway along the Marshall Field building and was separated by a roadway area. The east entrance of the construction office was directly opposite the west entrance of the Marshall Field building.
The testimony is in conflict as to what occurred immediately after Mustas entered the shopping-center area from Highway 100 and drove to the Marshall Field building. On direct examination Mustas testified that he parked the truck at the north end of the Marshall Field building and went into the north entrance. He stated he could not remember stopping at the Inland construction office or receiving any instructions from anyone there. On cross-examination he stated he was positive he did not stop at the Inland construction office. He specifically denied talking to anyone. However, he admitted on the cross-examination that his testimony on adverse examination that he could not recall whether
Certain portions of a deposition of Harold A. Kimball were introduced into evidence which conflicted with those statements of Mustas. Kimball, who was in the construction office that morning, recalled that Mustas came into the office and spoke to the secretary who called Kimball out of his office. He stated Mustas offered him the delivery ticket but he declined to sign it because the sand was for Rosenberg. He told Mustas that he would have to go out into the Marshall Field building, find their foreman, have him sign it, and have him direct Mustas where to deliver the sand. When asked whether he gave Mustas specific instructions on how he should turn when he entered through the entrance way of the building Kimball replied:
"Yes, I told him to go in and go to the right to the southeast and he would see this here rig that they were drilling this well with. It was up above the floor possibly eight or 10 feet."
According to Kimball, he instructed Mustas to go through the west entrance of the Marshall Field building, the one just opposite that of the construction office. He directed Mustas from the construction-office window facing the Marshall Field building.
In any event, Mustas went through the north entrance and observed the floor was rough concrete. Seeing a more brightly lighted area he walked about 150 feet toward that point. When he approached to within about 12 to 15 feet he encountered two men. He inquired whether they were Rosenberg employees. Eugene Borowski, one of these men, stated that they were Westinghouse employees and that the Rosenberg employees were working on the floor below. Mustas was then told by Borowski that he would have to go to the east side of the building and descend
The usual status of Mustas as the employee of a subcontractor to Inland is a frequenter under the safe-place statute. Sec. 101.01 (11), Stats. Neitzke v. Kraft-Phenix-Dairies, Inc. (1934), 214 Wis. 441, 445, 253 N. W. 579; Morrison v. Steinfort (1948), 254 Wis. 89, 35 N.W.2d 335; Williams v. International Oil Co. (1954), 267 Wis. 227, 229, 64 N.W.2d 817; Frankovis v. Klug & Smith Co. (1957), 275 Wis. 156, 161, 81 N.W.2d 495; McNally v. Goodenough (1958), 5 Wis.2d 293, 300, 92 N.W.2d 890; Waskow v. Robert L. Reisinger & Co. (1923), 180 Wis. 537, 193 N. W. 357; Criswell v. Seaman Body Corp. (1940), 233 Wis. 606, 290 N. W. 177; Umnus v. Wisconsin Public Service Corp. (1952), 260 Wis. 433, 51 N.W.2d 42; Burmek v. Miller Brewing Co. (1961), 12 Wis.2d 405, 107 N.W.2d 583.
Mustas would have lost his status as such and would have become a trespasser if he went into an area to which he was neither expressly nor impliedly invited. Grossenbach v. Devonshire Realty Co. (1935), 218 Wis. 633, 638, 261. N. W. 742. If Mustas in fact received the instructions from Kimball, Mustas could not have been found to have been a frequenter.
In view of the nature of the testimony of Mustas which conflicts with the statements of Kimball in his deposition, the question is whether there is credible evidence to sustain the jury finding that Mustas was a frequenter. The statements of Kimball are positive evidence that he gave specific instructions to Mustas. Although Mustas testified he did not go into the construction office or speak with anyone there, he also stated that he could not recall whether he went there or spoke with anyone. Under these circumstances his
On appeal we accept that version of the evidence that is most favorable to the prevailing party. Rud v. McNamara (1960), 10 Wis.2d 41, 102 N.W.2d 248, sec. 54.85, 7 Callaghan's Pleading & Practice, although contradicted by evidence which may have more weight, sec. 34.54, 5 Callaghan's Pleading & Practice. Therefore, assuming the credibility of Mustas' testimony, a reasonable inference can be drawn from it that he did not go into the construction office or speak with anyone there.
Appellant contends the trial court erroneously concluded that had Mustas not received such instructions the jury could infer he could reasonably proceed into the building for further instructions. It claims that conclusion was contrary to law and to the evidence.
There is credible evidence from which the jury could infer that Mustas was a frequenter if he did not receive any instructions. Mustas did not know the precise location of the Rosenberg crew or where to dump the sand when he entered the premises. Hence, he had the right to make a reasonable inquiry to seek this information. He was directed by Lutz that the crew was in the southwest portion of the Marshall Field building but he did not mention
The case of McNally v. Goodenough, supra, is relied upon by appellant as the authority for holding Mustas was a trespasser as a matter of law. In that case the plaintiff was repairing the roof of defendant's store. In order to ask the defendant what to do with certain things he descended the roof and went through the back door, walked through several rooms until he reached the main store, where he saw a clerk. After learning from the clerk that defendant was not present, plaintiff turned around and started to retrace his steps. He became confused and went through a door and into a dark vestibule and fell to the basement. The court held that on his initial trip through the store plaintiff was a frequenter. But when he went through the wrong door on his return he became a trespasser because he did not have any right to be in the vestibule or to use the stairway. Unlike the facts in that case, an inference can be drawn from the evidence here that Mustas' inquiry reasonably took him to the place where he fell and that he had a right to be there.
The trial court upheld the finding of the jury that Mustas' negligence was not causal on three possible theories:
"The jury could have reasoned that plaintiff was negligent in not seeing the object or ice in his path when he entered the building and walked toward the Westinghouse men but that, regardless, because he fell after talking to them such negligence was not a cause. The jury might have reasoned that even had plaintiff seen the ice and block before the conversation, he might have forgotten the same in the course of his conversation. Thus the fall would have occurred anyway.
"The jury may also have reasoned that the mechanics of the fall were such that it would have occurred regardless of the care exercised by plaintiff. He turned and took a couple steps, then fell. The incident was part of a single act of turning and walking ahead. Under such circumstance the jury might conclude even if plaintiff had been more observant and careful he nonetheless would have fallen."
None of these theories are applicable in view of the law and the nature of the evidence. The first one cannot be sustained because by it Mustas was not under the duty to discover defects in the floor after he had talked to the Westinghouse crew. Mustas was for the first time in this building which was under construction. Under these circumstances his duty to exercise reasonable care to discover
The verdict contained only a general question with respect to Inland's and Mustas' negligence. The jury's finding that Mustas was negligent and our holding that this negligence under the existing facts was causal as a matter of law renders the verdict inconsistent because the jury did not apportion any negligence to Mustas in the comparative question. Hence, a new trial is required on the issue of the comparison of negligence as between them. Veverka v. Metropolitan Casualty Ins. Co. (1957), 2 Wis.2d 8, 85 N.W.2d 782; Statz v. Pohl (1954), 266 Wis. 23, 62 N.W.2d 556, 63 N.W.2d 711; Callan v. Wick (1955), 269 Wis. 68, 74, 68 N.W.2d 438; Erdmann v. Wolfe (1960), 9 Wis.2d 307, 313, 314, 101 N.W.2d 44.
(3) Finding in favor of Westinghouse. The evidence is conflicting as to whether Mustas was within the work area of Westinghouse. However, there is substantial credible evidence to sustain the finding that Westinghouse was free from negligence. The icy area in question was to have been taken care of by Fred Pearson, construction superintendent for Inland. Also the Inland labor foreman was
(4) Indemnification contract. We have recognized as being valid agreements allowing indemnification to the owner of a manufacturing plant against a contractor for the former's negligence regardless of its nondelegable duties under the safe-place statute. Hartford Accident & Indemnity Co. v. Worden-Allen Co. (1941), 238 Wis. 124, 129, 297 N. W. 436. Generally, contracts between owners and contractors or between general contractors and subcontractors entered into for the purpose of indemnifying the owner or the general contractor against its negligence are considered valid and not contrary to public policy. Hartford Accident & Indemnity Co. v. Worden-Allen Co., supra, Anno. 175 A. L. R. 8, 144. For reasons given for the validity of these agreements see Boden, The Problem of Indemnity Under the Safe-Place Statute, 40 Marquette Law Review (1957), 349, 364-366. Also see discussion in Jacobs v. General Accident Fire & Life Assur. Corp. (1961), 14 Wis.2d 1, 109 N.W.2d 462. The question is whether the indemnity provisions of the present subcontracts provide for indemnification for negligence solely on the part of Inland.
The present contracts contain the following provisions:
"8. (c) The subcontractor assumes full responsibility and risk for any and all damage to person or property in the performance of the contract arising out of the assumed work, whether directly or indirectly, to be performed by
"Subcontractor agrees to forever hold, save and keep harmless and fully indemnify Inland and the owner or owners, or their agents, employees, and representatives, even though not specifically named, its, his, or their officers, employees, and representatives and agents, including the employees of the subcontractor, others, and the general public, of and from all liabilities, damages, claims, recoveries, costs, and expenses because of loss of or damage to property or injury to or deaths of persons in any way arising out of or in connection with the performance of this contract. All rights of subrogation by reason hereof are hereby expressly released and waived.
"Any joint use of facilities permitted by the subcontractor shall be the responsibility of the subcontractor for any damage to person or property, and subcontractor shall provide for his own liability with said joint user."
We, as the overwhelming majority of other states, favor strict construction of indemnity contracts. Majestic Realty Corp. v. Brant (1929), 198 Wis. 527, 224 N. W. 743. The contract in the Hartford decision provided (p. 127):
"`In accepting this order you agree to indemnify, reimburse, and save harmless the owner and us of and from all loss and damage to person or property and all claims, suits, or demands arising from damages or injuries to you and your employees, ourselves and our employees, the owner and his employees, other contractors and their employees, and
In that case we made a distinction between active negligence on the part of the indemnitor and passive negligence on the part of the indemnitee and held the indemnitor liable under the language of this contract. It was not answered whether the indemnitor would be liable under it if the negligence was solely that of the indemnitee. However, we did state:
"It may very well be that if the injuries had arisen solely out of Seaman's default in some respect, and were not in any way attributable to Worden, there would be no liability under the indemnity agreement." Hartford Accident & Indemnity Co. v. Worden-Allen Co., supra, page 129.
Later we said:
"A strong argument can be made to the effect that such a case is not covered by the indemnity, but we need not decide this question because it is not here under the facts of this case." Hartford Accident & Indemnity Co. v. Worden-Allen Co., supra, page 130.
In accordance with the general rule of strict construction of these contracts, and with previous statements in the Hartford Case, the indemnity contracts here are not applicable because they do not expressly provide for indemnification for negligence solely caused by Inland. See Globig v. Greene & Gust Co. (1962), 201 Fed. Supp. 945, 952; Indemnity Ins. Co. v. Koontz-Wagner Electric Co. (7th Cir. 1956), 233 Fed. (2d) 380, 382. See also 42 C. J. S., Indemnity, p. 579, sec. 12.
Several states have construed language very similar to that used in the present contracts to be very general in nature and not applicable to the negligence of the indemnitee. In Manhattan R. Co. v. Cornell (1889), 61 N. Y. (54 Hun),
(5) Award of damages. The jury awarded plaintiff $24,000 for plaintiff's pain, suffering, and disability. The trial court extended to plaintiff an option to take $18,500 or to have a new trial. Plaintiff accepted the reduced amount and judgment for plaintiff was entered in conformity. Defendant Inland has appealed from the entire judgment.
When the appeal questions the amount of damages as not being supported by the evidence, — as here — and this court has ordered a new trial on other grounds, — as here — it has been our practice to include the issue of damages in the order for new trial. We do so here. We conclude that there must be a new trial on the comparison of the causal negligence of plaintiff and of defendant Inland. The new trial shall also include the issue of plaintiff's damages for pain, suffering, disfigurement, and future disability. Magin v. Bemis (1962), 17 Wis.2d 192, 200, 116 N.W.2d 129; Anderson v. Saunders (1962), 16 Wis.2d 55, 60, 113 N.W.2d 831; Paulson v. Hardware Mut. Casualty Co. (1957), 2 Wis.2d 94, 101, 85 N.W.2d 848.
On appeal Inland successfully contended that plaintiff was guilty of causal negligence as a matter of law. Inland may tax costs against plaintiff for nine pages of Inland's brief devoted to that issue.
Inland has succeeded in obtaining a new trial on damages and may tax costs against plaintiff for the three and three-fourths pages of Inland's brief devoted to the question of excessive damages.
Inland contended that Westinghouse failed to provide a safe place of employment and is liable for plaintiff's injuries. Inland lost on that issue and Westinghouse may tax costs against Inland for the three pages of Westinghouse's brief opposing that contention.
Inland contended unsuccessfully that both Westinghouse and Rosenberg were liable to Inland as indemnitors under their subcontracts. They may tax costs against Inland for the parts of their briefs upon that issue, as follows: To Westinghouse, one page; to Rosenberg, 17 pages.
By the Court. — Judgment reversed, and cause remanded for a new trial on the issue of the comparative causal negligence of plaintiff and of defendant Inland, and on the issue of plaintiff's damages for pain, suffering, disfigurement, and future disability. In other respects the judgment is affirmed. Costs to be taxed in accordance with the opinion.
The following memorandum was filed April 30, 1963:
PER CURIAM (on motions for rehearing).
Plaintiff Mustas and defendant Inland, in support of their respective motions for rehearing, reargue propositions previously considered and decided. We deem the respective motions without merit.
We deem it advisable, however, to make this observation lest the scope of the new trial ordered be not fully understood. We intend that the answers to certain questions in the special verdict be set aside and that the new trial extend
The motions for rehearing are denied, without costs.