Gobar v. Val. Blatz Brewing Co.

It was properly conceded upon the trial that under the facts as presented there was no showing of any breach by the respondent, as owner of the premises, of any common-law duty or obligation toward the plaintiff or his child, and we can find no reasonable theory upon which it could be said that the legislature intended the statutory regulations and provisions of ch. 110a, Stats., and the particular sections above cited, the sole reliance of appellant here, to include and cover the situation here. •

The use of the second floor of this two-story building by the plaintiff for living purposes was entirely separate and distinct from the use of the first floor, and while that portion of it was undoubtedly open to the public and frequenters for trade and traffic, yet the second story certainly was not so open to the public and frequenters. It is urged, however, that such first story being so used for trade as a place of *259resort or by the public, and therefore presumably within the statutory definition of the term “public building.” found in sub. (12), sec. 2394 — 41, supra, it brings all under the same roof within the same category. In other words, that where one roof or one structure has under it or within its walls a part subject to the regulation, control, and liabilities provided for in ch. 110a, all else under the same roof or within the same outside walls is perforce within the statute also and equally a “public building.” A consideration, however, of the scope and purpose of the entire chapter as • well as of the particular sections of the statutes here involved clearly shows that such cannot be the reasonable construction to be given to the terms “any structure used in whole or in part” in sub-. (12), sec. 2394 — 41, supra. This means, only, that that which is a “public building” within the statutory control and subject to the statutory liabilities cannot escape such control, supervision, and liabilities by reason of being but a part of an entire structure the balance whereof is not, from its purpose or use, within the statutes. Such part of an entire structure as is put to a public use is not withdrawn from the statute by reason of its being but a fractional part of an entirety, but, on the other hand, the rest of the structure does not become drawn within the statute by the use made of the fractional part.

The provisions found in the same sub. (12), viz. “by three or more tenants,” also indicates that in order for a building rented for dwelling purposes to come as such within the definition of “public building” it must be arranged for, or used by, three or more tenants. The distinction between the building here, arranged as it was for but two tenants, and that presented in the case of the thirty-five apartment building in Zeininger v. Preble, 173 Wis. 243. 180 N. W. 844, is clear and cannot be disregarded.

The nonsuit was properly granted, and consideration of other questions presented is unnecessary.

By the Court. — Judgment affirmed.