101 Wis. 258 | Wis. | 1898
This action was brought, tried, submitted to the jury, and went to judgment, upon the theory, apparently, that a recovery was claimed for the death of plaintiff’s intestate on the ground of actionable negligence of defendant. Something is said in the briefs of counsel about the rule, so called, of implied warranty in the sale of provisions for immediate domestic use, as if that rule might apply to the facts. It is not necessary to consider that theory because of the manner in which the case was tried and submitted, as indicated, though it is proper, and deemed advisable as a guide in future proceedings, to discuss it. The doctrine of Sir William Blackstone that there is a warranty of the wholesomeness of provisions sold for domestic use by the .buyer, and that the vendor is bound to know their quality in that regard at his peril, is controverted by the weight of authority in this country and England. Liability for damages in the circumstances mentioned is supported, but on the ground of deceit, not contract. It would be interesting, and probably constitute a valuable addition to our jurisprudence, to have the true nature of that liability definitely decided here. The writer is not familiar with any case ivhere
There is a strong reason for holding that caveat emptor applies to the purchases of provisions for domestic use the same as to purchases of other articles, in the absence of express contract or of fraud; that the only difference is that the situation and relation of the parties .in the one case x’aises an inference of artifice, -while in the other it does not. In Emerson v. Brigham, 10 Mass. 197, it is said, in substance, that the mistake of Blackstone was in treating deceit and fraud as breach of implied contract; that artifice must be established as the foundation of liability, and without it no liability in'the nature of that on an implied warranty exists in case of the sale of provisions any more than in the sale of any other article; that the sale of provisions for a sound price for immediate consumption involves a representation of wholesomeness, and knowledge of the falsehood, if falsehood there be, is presumed from the nature of the transaction and duties growing out of the trade; that the inference of fraud arises from the necessities of the situation, and to the deceit attaches the liability. That xvas affirmed in Winsor v. Lombard, 18 Pick. 57, where Chief Justice Shaw,stated, in effect, that the supposition as to the rule of implied warranty existing in the sale of provisions any more than in the sale of other articles, is founded in failure to distinguish between a rule of evidence and a rule of law, as explained in Mr. Justice Sewall’s opinion in Emerson v. Brigham. In Moses v. Mead, 1 Denio, 378, Bronson, C. J., speaking on the same subject, said that the dictum of Blackstone cannot be supported in its full extent; that the liability can be supported, but on the ground of deceit, citing Emerson v. Brigham with approval, and distinguishing Van Bracklin v.
A careful examination of the text-books on this subject shows that the writers reason along the line of Emerson v. Brigham and the other cases cited. Benj. Sales (ed. 1892), 647; Biddle, Warranties, §§ 193-204; 2 Schouler, Pers. Prop. § 348;. 10 Am. & Eng. Ency. of Law, 157.
Courts in recent years have not been inclined to add new exceptions to the rule of caveat enyptor, or to extend those already established. It once applied to all sales of personal property, with the one exception of warranty of title. Many exceptions have since been added, presumably under the influence of the civil law, where the rule was caveat venditor, a rule as harsh to the seller as that of the common law to the-buyer. Each exception in the development of our system paved the way for another, and that for still another, as the exigencies of particular situations seemed to require, in order to harmonize moral with legal obligations, till the rule itself ceased to be the safe and simple guide it was when Justice PoRham, in pronouncing the law in his time, said, “ If I have commodities which are damaged, whether victuals or otherwise, and I, knowing them to be so, sell them for good and affirm them to be so, an action upon the case lies for deceit; and although they be damaged, if I, knowing not that, affirm them to be good, still no action lies without I warrant them to be good.” That a more enlightened sense of justice has softened and limited that rigorous rule, is by no means to be regretted; but if a ivritten system of laws is to be preserved at all, and the science of the law is to be found
In the light of the foregoing, no reason is perceived for saying that a mere distributor of water for a compensation should be held liable as a guarantor of its quality. It is not .a commodity kept for sale in the strict sense of the term, but is free to every one, in nature’s reservoirs, like light and air. It is taken directly or indirectly from a common source of supply. The immediate source, as in this case, is usually selected in advance and fixed by contract, leaving the mere service of a carrier to be performed, of taking the water from such source and distributing it to the consumers. To say that the person or corporation performing that service shall be burdened with an implied warranty pf the quality of the thing carried and distributed, would be treating the transaction as a sale, strictly so called, and then applying an exception to the doctrine of caveat em/ptor not supported by good reason, or any authority we are able to find, or any to which our attention has been called. It would burden such public service in a way that would be destructive of private enterprise in that line, and render public enterprise
From the foregoing it will be seen that if a Recovery can be sustained on the facts of this case at all, it must be on the ground of actionable fraud or negligence without contributory fault on the part of the deceased. If defendant knew, or from the situation ought to have known, the water it was distributing in the city of Ashland was dangerous for domestic use, from some cause not discoverable ordinarily by the exercise of reasonable care, it owed the duty to its •customers of disclosing that danger, and a failure so to Mo, knowing that such customers were liable to use the water through ignorance of its character, was a fraud in law, rendering the defendant- liable to legal damages to any person injured by such fraud without fault on his part, and it was also a failure of duty amounting to actionable negligence as well, to which the same liability is incident. The mere fact, if it be a fact, that it had been rendered impracticable for defendant to procure a supply of wholesome water in Che-quamegon Bay, as required by the contract with the city, from causes attributable to the municipality, though constituting
The foregoing discussion and statement is deemed justified, if not called for, by the positions taken by counsel. If some of the principles contended for were applied on a new trial of the case, and it resulted favorably to the plaintiff, the misfortune of a reversal might probably follow. The danger in that regard may be avoided, guided by what has been said.
In considering the specific errors assigned, it appears
What has been said on the subject of evidence of precautions against sewage contamination after the occurrence complained of, applies to evidence of experts, received against defendant’s objection, as to tests made of water taken from the bay some time after such occurrence. For aught that appears, the water may have been -wholesome in the early part of March, 1894, and very unwholesome when the subsequent tests were made. The evidence shows that the deceased took the fever about the 1st of March, and that the height of the typhoid fever epidemic was not reached till the last of that month, there being several hundred persons afflicted in all. Under the circumstances, sufficient time had elapsed for a material change in the bay water to have taken
It is further assigned for error that the court allowed opinion evidence, as to facts in issue,— the evidentiary facts (not for scientific controversy) relating thereto being in dispute,— contrary to the settled law on the subject, .and as declared in numerous decisions in this court, and recently stated in Maitland v. Gilbert Paper Co. 97 Wis. 476. The following are some of the questions complained of: “You may state whether or not, in your opinion, the water furnished by the Ashland Water Company during the winter- and spring of 1894 had anything to do with the typhoid fever epidemic which prevailed in the city of Ashland during that time? ” “"What, in your judgment, was the cause of the typhoid fever of which he [Green] died?” “You say the typhoid fever in this case, in your opinion, was caused by drinking bay water: Do you say that from the investigations you made ? ” All the questions were answered in the affirmative. The learned counsel for respondent say in support of the questions, that they were proper because the effect of evidence produced in establishing controverted facts, on which opinions were given, was not involved,— that such facts were not in dispute. We are unable to see the case that way. How can it be said the question was established beyond controversy that the deceased did not drink other than bay water ? Let it be admitted that up to within four days from the time he was stricken with the disease, bay water was used at his working place as well as at his home.
As a second proposition respondent suggests, with apparent confidence, that the questions were proper under the rule that a physician may testify, as to the cause of death, from 'personal examination or knowledge. That rule is familiar, but extends no further than the immediate cause of death, because, manifestly, that is the limit of scientific investigation. Failure to observe that test often leads to prejudicial error. A competent witness may testify as to whether a person came to his death by a wound found upon the body, but not as to who inflicted it, because, as said, he cannot go beyond the range of scientific investigation: This court said, an expert may testify that certain injuries to a female, found on personal examination, may have-been. caused by a ravishment, but not that they were so caused, and, we may add, certainly not who was the guilty party. Noonan v. State, 55 Wis. 258. These illustrations show clearly that respondent’s counsel erred in relying on the rule mentioned to sustain the method of examination of the expert resorted to.
Opinion evidence was permitted against objection, as to the duty of the defendant with reference to testing the water supply. As to this, respondent’s counsel answer, the objectionable parts of the evidence, if there be such, were not responsive to the questions. An examination of the record fails to bear out that view. The questions were: “What, in your judgment, should the water company do with reference to ascertaining the purity or impurity of the water ? ” “ ITow frequently,in your judgment, should these analyses be made ?” They seem to call very clearly for opinion evidence as to the duty of defendant as regards testing the water supply. That ■certainly, if material at all, was a question to be determined by the jury, ,170 ground is perceived upon which the questions can be sustained. It was competent to show by opinion evidence that the quality of the water was only determinable by certain tests, but whether legal duty required defendant to make the tests was certainly not a matter for such evidence.
The appellant further complains of a ruling, admitting in evidence an article published in an Ashland newspaper about seven months prior to Green’s death, wherein the defendant was charged with distributing poisonous water to its customers and requiring the city to pay for water service twice as much as was proper, and it wás suggested that the most expeditious method of dealing with defendant, in order to remedy the evils complained of, was to annul its franchise and seize its property; and it was further suggested that the
The remaining question for consideration was raised by the motion for a nonsuit, the motion to direct a verdict, and the motion for a new trial. All the rulings may properly be considered together. The learned trial court correctly held that the franchise under which the defendant operated its works did not require it to go outside of Chequamegon Bay for a water supply. Following that and the negligence alleged in the complaint,— failure to extend the intake pipe to a point beyond the reach of sewage contamination,— the court submitted to the jury these questions: “ Could the defendant company have procured wholesome water from Chequamegon Bay at and prior to the sickness of Creen ? ” “Was the defendant company guilty of negligence which was the proximate cause of the death of Green ? ” “ Did defendant know, or ought it reasonably to have known, prior to the time when the deceased contracted the disease from which he died, that the water it furnished deceased was contaminated by typhoid germs ? ” To each of such questions the jury answered in the affirmative.' Thus, it will be seen, the right of plaintiff to recover was made to turn on whether defendant negligently failed to extend its intake pipe into pure water in Chequamegon Bay. As heretofore indicated, the mere fact of impracticability or impossibility of obtaining á pure water supply in the bay, if such were the facts, did not legally excuse defendant from knowingly distributing dangerously impure water for domestic consumption under such circumstances that persons of ordinary intelligence might probably use the same with dangerous consequences. But as that was not the theory of the pleaders in making up the issues for trial, or in the submission of their case to the jury, the case will be considered as the parties and the trial court considered it. Whether a judgment
Does the evidence warrant the finding that defendant failed to exercise ordinary care to procure a pure water supply from the bay ? That, as indicated, is the key to plaintiff’s case. We have searched the record from beginning to end, and read and re-read it with the greatest care, to find such evidence, and have failed. The point was raised in appellant’s brief that no such evidence exists, and no reply thereto appears in the brief of respondent. No evidence is pointed out by them upon which the findings can rest. They evidently turned, if based on evidence at all, on an unsworn report of a chemist, based in part on an unverified report of an examination made by Yaughn, of the Michigan University, of several samples of water, one of which was taken from a point about 1,000 feet east of the breakwater, which point was about two miles from the pumping station. The samples were selected some time after the occurrence complained of. The one east of the breakwater was the only one found free from sewage contamination. The chemist who made the report did not place sufficient reliance thereon to recommend resorting for a supply to the place where, on the single occasion, pure water was found. He thought a supply might be found there with reasonable certainty, but expressed a preference for going'outside the bay entirely. All the sworn evidence in the case shows that if pure water was found on one occasion at a particular place, that situation might or might not continue; that the bay water was so generally contaminated with sewage, especially in the spring, that a safe supply could not be found there with any reasonable certainty. Dr. Hosmer said, if there was no cur'rent, there would be more protection; that towards Wash-burn, just before reaching the sewage on that side of the
Further, it is shown that nearly a year prior to the death of Green, the officers of the city and the officers of the water company were of .one mind as to the necessity of going outside the bay to get water suitable for domestic use. As early as February, 1893, an official report was made to the common council and adopted, to the effect that the intake pipe should be extended so as to take the water supply from the lake instead of the bay, and the city attorney was requested to draw a resolution formally directing the defendant to make such extension. In April, thereafter, sucli a resolution was drafted by the board of health and adopted by the council, and thereafter an attempt was made to condemn the water supply and annul the defendant’s franchise because it did not go to the lake with its intake pipe. It clearly appears all through the proceedings of the common council, for nearly a year prior to the death of Green, that all parties understood that the bay water was unsuitable for dietetic use. During all that time a contest existed between the municipality and the defendant as to whether the latter was obliged to extend the intake pipe into the lake, it being agreed that water free from dangerous pollution could not be obtained from the bay.
It is further contended by appellant’s counsel that the evidence conclusively shows contributory fault of deceased, precluding a recovery. As before indicated, if deceased drank the bay water with knowledge, or reasonable means of knowledge, that it was dangerously polluted with sewage, he took upon himself the risk, and the plaintiff cannot recover, whether recovery be sought on the ground of deceit or negligence. The jury found specifically for plaintiff on that point, yet said by another finding that prior to the death of Green it was publicly and widely stated, and believed, among the citizens of Ashland, that the cause of typhoid fever epidemics in the city was the impure drinking water furnished by defendant. In view of the fact, which we deem uncon-troverted by the evidence, that the water was impure, and that such condition had existed for a long time and was widely and commonly known, the findings referred to are inconsistent, there being no evidence explaining why the deceased did not know of that which was a matter of common knowledge in the community where he lived. Common knowledge of a fact raises a presumption that all persons of average intelligence have notice of it. That is elementary.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.