207 Wis. 209 | Wis. | 1932
Lead Opinion
The following opinions were filed January 12, 1932:
The principal contentions of the defendants are as follows: first, that there is no evidence of negligence on the part of the Tube Company in the manufacture of the tubes sold to the Marsh Company; second, that assuming such negligence to have been established, there is no evidence that it was the proximate cause of the injuries to plaintiffs; third, that there is no evidence to support the finding of the jury that the tube was defective; fourth, that the rule that a manufacturer who fails to exercise ordinary care to ascertain the safety of an article sold is liable for injuries proximately resulting therefrom is inapplicable to a manufacturer of boiler tubes which are tested by the pur
The evidence in this case is voluminous and difficult to summarize within the limits of an opinion. The plaintiffs, in order to sustain their contention that the tube was defective and that the process of manufacture was negligent, relied principally upon the testimony of Richard S. Mc-Caffery, Professor of Metallurgy at the University of Wisconsin. Professor McCaffery testified that he prepared samples of the tube for microscopic examination. The purpose of such an examination is to discover the texture and structure of the steel, and thereby to ascertain its soundness and homogeneity. In the specimens examined by Professor McCaffery, which were taken close to the point of rupture, he found a large number of inclusions, impurities, slag, etc., which, in his judgment, rendered the steel unsound. He also examined portions of the steel taken from points further from the rupture, and found impurities and inclusions in smaller amounts. He condemned all of the specimens which he examined as unfit for the manufacture of boiler tubes, and expressed his opinion that such a tube, considering the frequency of the inclusions, would constitute a menace to life and limb, and that it was imminently dangerous. He also gave it as his opinion that the defects were the cause of the rupture, and denied that the steel showed any evidence of having been overheated in the process of operating the boiler. From this testimony we think the jury would be entitled to conclude that the tube was defective due to the quality of the steel at the point of rupture, and that the defective steel at this point made the tube imminently dangerous to life and limb, and was the cause of the rupture. Hence, it is our conclusion that there is evidence to sustain the jury’s finding to questions one and two.
The more difficult question to determine is whether there is evidence that the defendant Tube Company was guilty of
The contention of the plaintiffs that there is evidence of negligence in the selection of the steel from which1 the tube was made is not sustained by the evidence. It is undisputed that the steel from which the tubes were made was either non-penalty steel or miscellaneous steel, or both. Miscellaneous steel is steel received in the form of billets which are not of uniform length. Non-penalty steel is purchased with the understanding that if it does not stand the test required it shall be returned in its entirety to the steel manufacturer. There is no evidence that either type of steel is of inferior quality.
The next contention is that there is evidence to -sustain a finding of negligence on the part of the defendant Tube Company in not having an inspector at the steel plant for the purpose of inspecting steel purchased for tubes. It is extremely doubtful whether any such custom was established to the point of making it a jury question. Assuming, however, that it was so established, it is clear that there is no causal connection between the failure to have such a representative and the injuries to plaintiffs. Since the experts of the plaintiffs positively testified that only by a microscopic examination could the particular defects of this steel be discovered, it is evident that the presence of an inspector or representative would serve no purpose unless he instituted such a test, and the expert testimony is to the effect that these tests should be conducted at various stages of the process of tube manufacture, rather than at the plant of the steel producer.
It is also the contention of the plaintiffs that there is evidence from which the jury could find a failure to make a proper hydrostatic test of the tubes at the plant of the
The next question is whether the evidence sustains the finding of the jury that defendants were guilty of negligence in failing to subject the steel used in the tube to a microscopic examination for the purpose .of discovering the presence of inclusions of slag in dangerous quantities. Professor McCaffery stated that practically the only way of determining the soundness of the metal is by use of the microscope. Pie further stated that good practice in 1926 required a metallographic or microscopic examination of the steel out of which it was proposed to make boiler tubes. He stated that this examination should be made from the billets of steel from which the tubes are made, and that thereafter further examinations should be made successively through the process of manufacture, the number to depend upon the results of the earlier tests. He stated that this examination should be made of the part of the tube that is nearest and most representative of the upper part of the ingot from which the tube is made'. He testified that he knew of no single manufacturer or seller of tubes who incorporates this examination in the specifications he uses in the manufacture of boiler tubes, and that he knew of no tube manufacturer who makes such an examination of every heat of steel that he converts into tubes. The testimony of Professor Scott McKay, of'the University of Wisconsin, an expert metallurgist, was substantially to the sanie effect.
Is this evidence sufficient to permit the jury to find that the failure to institute the metallographic examination by defendants constitutes negligence? We have concluded that it is sufficient. It represents the judgment of recognized experts in the field as to the requirements of the art in which they are experts, and it is our conclusion that the jury might accept the opinions as establishing the reasonableness of instituting this test and the necessity for its institution in order
It is urged by defendants that this case comes within' the doctrine of Bandekow v. Chicago, B. & Q. R. Co. 136 Wis. 341, 117 N. W. 812; Merton v. Mich. Cent. R. Co. 150 Wis. 540, 137 N. W. 767; Zartner v. George, 156 Wis. 131, 145 N. W. 971, and Stasek v. Banner Coffee Co. 164 Wis. 538, 159 N. W. 945. In the Bandekow Case it is said:
“It has been held in a long array of cases that proof that the conduct of a defendant coincided with the customary method of doing the business by others under similar circumstances excludes the inference of negligence. True, an exception is noted in the authorities, and equally well established, to the effect that a custom which is so obviously dangerous to life and limb as to be at once recognized as such by all intelligent persons cannot be justified under this rule.”
It .is evident that the effect of the expert testimony in this case is to characterize the customary method of manufacture as dangerous and negligent, and to warrant the jury in finding that customary standards did not' meet the requirement of due care. Having decided that there is evidence from which the jury could conclude that failure to institute this test constituted negligence, in view of the progress of the art in 1926, it becomes necessary to consider whether the
It is again necessary to refer to the evidence of Professor McCaffery. The ingot is a part of a heat of metal. This ingot is made into blooms, and blooms are made into billets, which are lengths of metal that have been put through a rolling process. The tubes are manufactured from the billets. Professor McCaffery states that the microscopic examination should be made from the upper part of the tube nearest and most representative of the upper part of the ingot from which the tube is made. It cannot, for the obvious reason that it will destroy the tube, be made from any portion of the tube or billet or bloom except from the end. Professor McCaffery does not state that an examination of the end nearest and most representative of the upper part of the ingot from which this tube was made would have disclosed enough inclusions to warrant the discarding of the steel, nor did he make any examination upon which such an opinion could be based. From this it is contended that there is no basis for the jury’s conclusion that negligence in failing to institute a metallographic test was a cause of the injuries to plaintiffs. This contention necessitates a further analysis of the testimony of Professor McCaffery. We think that, fairly construed, his testimony is to the following effect: first, that the discharge .of the obligation to exercise due care required the institution of metallographic examinations; second, that the purpose of such an examination is to determine not the quality of steel in any particular tube, but the quality of steel in the heat from which it is proposed to make the tubes. He states that a number of such examinations should be made, the number to vary with the findings in the earlier examinations, and it is a fair conclusion that he means to state that such an examination, properly carried out, would disclose to the manufacturer the defective quality of a particular heat of
A careful examination of the testimony leads us to the conclusion that the testimony of Professor McCaffery and Professor McKay does amount to a condemnation of the steel from which the tubes were made, and is not limited to the small portions of steel which have been examined under the microscope. Professor McCaffery says:
“It is my opinion that the steel, pictures of which are preserved in plaintiff’s exhibit 4, is not suitable for use in boiler tubes. That opinion is based on the opinion I have acquired after very many years of study of steel for all purposes and examination of various steel that I know have*222 failed under conditions I have produced myself in certain cases of their failure and the incorporation of that experience over a great many years. . .• . That opinion is formed because of things which I observed in that steel and which are illustrated by what appears in plaintiff’s exhibit 4.”
This is even more apparent from the testimony of Professor McKay. He was asked the question: “I will ask you whether or not in your opinion the steel with the inclusions such as shown in plaintiff’s exhibit 5, is steel from which to make tubes for boilers ?” Answer: “I do not want to limit my opinion to the four pictures shown here, because I want to include my visual examination, and if I may include that I consider that unfit for such use.”
From this it is our conclusion: first, that the expert testimony points to the necessity of metallographic examinations in discharge of the duty of due care; second, that the evidence is such as could warrant the jury in finding that such an examination, properly carried out, would have resulted in the rejection of the heat of steel from which this tube was made; and third, that the tube was actually made from an impure and unfit quántity of steel. It follows that the jury were warranted by the évidence in finding both negligence and proximate cause with respect to the necessity of metallographic examinations.
It is further contended by the defendants that the rule that a manufacturer who fails to exercise ordinary care to ascertain the safety of an article sold is liable for injuries proximately resulting therefrom, is inapplicable to a manufacturer of boiler tubes which are to be tested by the purchaser after being installed. It is unnecessary in this opinion to discuss in any detail the tort liability of manufacturers to persons, other than the vendee, who are injured by negligently manufactured articles. The subject has been fully discussed in Flies v. Fox Bros. Buick Co. 196 Wis. 196, 218 N. W. 855. In this case the doctrine, of Mac-
“If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.”
These decisions represent the modern tendency of courts with reference to the tort liability of the manufacturer for articles negligently constructed. See Bohlen, Liability of Manufacturers, 45 Law Quarterly Review, 343; Feezer, Tort Liability of Manufacturers, 10 Minn. Law Review, 27; Green, Rationale of Proximate Cause, p. 28; notes 15 Iowa Law Review, 110; 1.4 Minn. Law Review, 306; 29 Harvard Law Review, 66.
It can hardly be questioned that a boiler tube falls within the class of articles which, if negligently manufactured, will be imminently dangerous to life and limb. It is contended by the defendants that the MacPherson Case imposed a liability only upon a manufacturer whose article was to be used without new tests. However, the opinion in that case makes it very clear that the court does not mean definitely and finally to limit the doctrine. In the- MacPherson Case the goods were sold to be used without new tests, and the court went no further than was necessary to dispose of the facts before it, leaving to the future a consideration of any further extensions of or limitations upon the doctrine. Hence, we think the case is not authority for the proposition that in every case where new tests are to be made by the purchaser, the manufacturer is relieved of any liability to those other than the vendee, for negligent construction.
It is further contended by the defendants that the Marsh Company has no claim based on breach of warranty, because no notice of such claim was given within a reasonable time as required by sec. 121.49, Stats. This section provides that “if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know, of such breach, the seller shall not be liable therefor.” The rupture of the tube occurred on September 28, 1926. Thereafter the Marsh Company ordered from the Tube Company twenty-eight new tubes to replace the ruptured tube and the other tubes in the front bank which had become bulged and snarled as a result of the explosion. These tubes were shipped by the Tube Company to the Marsh Company and were installed. The Marsh Company paid for the tubes and made no claim or complaint against the Tube Company or the Babcock & Wilcox'Company for breach of warranty or negligence, except such claim as was involved in the commencement of the present action on June 14, 1928, — more than one year and eight months after the accident. On the part of the defendants it is contended that such delay is unreasonable.
We have concluded that this contention is- sound. Under the section relied upon, the purchaser has neither a right of action for the breach of a promise or warranty in the contract, nor a defense to an action for the purchase price,
However, it having been determined that the jury were justified in finding that there was negligence in the manufacture of the tubes, and that this was a proximate,cause of the explosion and injury, there is no reason to disturb the judgment in favor of the Marsh Wood Products Company, provided the doctrine which establishes defendants’ liability for personal injuries properly extends to the destruction of property as well as injuries to persons. Upon this question there is a conflict of authority. The New York court has expressly refrained from passing upon the question. Pine Grove Poultry Farm v. Newtown B.-P. Mfg. Co. 248 N. Y.
It is contended that the damages are excessive. We have carefully considered this matter and find that the contention is without merit. We think there would be no profit in further extending this opinion by a discussion of each of the items of damage objected to. Hence, we will confine our consideration to the largest item of damage- — the award to Victor Kakolius of $15,000. Mr. Kakolius received severe second and third degree burns to his chest, throat, and hands. He was confined to the hospital for a period of about three months, during the first three weeks of which he could not move at all. As a result of the burns he was compelled to have an operation for the removal of the thyroid gland and later a plastic operation on his neck for the reason that one of the scars upon his neck was so contracted as to force his head out of its normal position. He was confined to his home for a year after his return from the hospital. His hands were very severely burned, and in healing large thick scars have been left upon his hands. The tissues of these scars underneath the skin are raised, and the tissue itself is thinner than normal skin and has an almost parchment-like structure. There were still, after four and one-half years, scabs on the fingers which frequently broke down and opened.' He had had every sort of treatment to bring the condition of his hands and neck to normal, but the conditions are permanent. Due to the
The contention that the General Storage Company is not entitled to have revived in its favor the action which was commenced by the Marsh Wood Products Company is without merit. The latter company was dissolved January 25, 1928. The General Storage Company is its sole- stockholder. This action was commenced in June, 1928, and as a result of unavoidable delays was not reached for trial until January 14, 1931. The trial was in progress when the three-year period provided by sec. 181.02 for the prosecution and defense of actions against a dissolved corporation expired. Upon an affidavit o'f H. W. Marsh, president of the Marsh Wood Products Company, that the General Storage Company was the sole stockholder and that all
It is further claimed that the court erred in refusing to admit for identification certain microscopic photographs of steel taken from a text-book and which it is claimed were identified by Professor McCaffery as having gone through the critical range of temperature rapidly. The purpose in offering these photographs was to permit the jury to compare the structure of the steel as dissolved by them with that of the steel from the boiler tubes. It is defendants’ claim that this would have disclosed that the structures were the same, and would have led to the conclusion that the tube had been overheated. We think the exhibit was properly excluded. Professor McCaffery expressly declined to recognize the pictures as fairly representative of the
Error is claimed because the court struck out the testimony of Fred L. Dornbrook, in response to a motion based upon his claimed incompetence as an expert in metallurgy. Under the rule in Northern Supply Co. v. Wangard, 123 Wis. 1, 100 N. W. 1066, the ruling cannot be disturbed. The court there said: “The questions in that regard, however, relate to mere competency, and, therefore, the trial judge’s determination thereof, within all reasonable limits, is supreme.”
Upon a careful examination of the record we do not think it can be said that the trial court abused its discretion in excluding the testimony. Furthermore, there was ample testimony on behalf of the defendants to the same effect as that offered by Dornbrook, and if it were to be held error, we could not say it was prejudicial.
Error is also predicated upon the admission of evidence on the part of Professor McCaffery that the tube, because of inclusions, was a menace to life and limb. The objection is based upon the contention that the issues to which this question relates were for the jury, and that the witness was erroneously permitted to give an opinion concerning one of the ultimate facts in issue. While it is difficult to harmonize all that has been said upon this subject by this court, we think it settled that the opinions of witnesses which relate to matters of science or to skill cannot be objected to merely because they cover one of the ultimate facts to be determined by the jury. Daly v. Milwaukee, 103 Wis. 588, 79 N. W. 752; Innes v. Milwaukee, 103 Wis. 582, 79 N. W. 783;
It is further claimed that the defendant Babcock & Wilcox .Company, being neither a manufacturer nor seller of the tubes, is not liable in this action. We have carefully examined the testimony and have come to the conclusion that, the evidence clearly points to the fact that the Tube Company was a mere agent of the Babcock & Wilcox Company, and that the latter company is liable under the doctrine of respondeat superior.
It is next contended that error was committed by the court in refusing to submit to the jury questions as to whether the tube was overheated at the time of the rupture, and whether the Marsh Company was negligent in operating the boiler. In this case the question was whether the tube exploded, by reason of defects in the tube or by reason of its.having been overheated in the process of operation. In so far as the question was, which of these two factors was the cause of the explosion, we think there was no necessity for submitting the question relating to overheating together with the question of the tube’s defective structure. Upon this phase of the issue, the question being which of the two was the cause, the finding that the tube was defective and that it was the cause of the rupture would exclude overheating as the cause. Consequently, we think the failure to submit the question as to whether the rupture occurred as the result of oyerheating need not have been submitted because it was sufficiently covered by the question.relating to the causal connection between the defects of the boiler and the rupture. In so far as the overheating may be claimed to have been a contributing cause, its submission to the jury would be as a part of the issue of contributory negligence.
A more serious question arises with respect to the submission of this case as a whole. As has heretofore been stated, the first question of the special verdict required the jury to find whether the tube was so defective by reason of inclusions as to .render it imminently dangerous to life and limb when used under allowable working pressure. This question was proper both in form and substance. Having submitted to the jury the question whether the tube was actually defective, and whether the defect was the cause of the rupture, it next became the duty of the court to submit to the jury the question whether the defendant was negligent with respect to the manufacture of the tube, in that it failed to subject the heat of steel from which the tube was manufactured to a metallographic or microscopic inspection. The question, in order to conform to the evidence offered, is not whether this tube or all the tubes should have been subjected to this test, because the evidence is clear from plaintiff’s own experts that no such obligation can be contended for. Question seven asked the jury to find whether the defendant Tube Company failed to exercise ordinary care “with
We think the verdict in the form submitted did not respond to the only issues of fact, and that this resulted in prejudice to the defendants. This compels a reversal of the judgment.
By the Court.■ — Judgments reversed, and cause remanded with directions to grant a new trial.
Dissenting Opinion
(dissenting in part). I am of the opinion that there is no evidence in the record upon which the defendants can be charged with negligence on the ground that they failed to subject the steel used in the manufacture of the tubes to a microscopic examination for the purpose of discovering the inclusion of slag in dangerous quantities. The evidence clearly shows that in the manufacture of steel, no matter what degree of care is employed, such inclusions may occur; that when they do occur they render such an article as a boiler tube highly dangerous is apparent.
I subscribe fully to the doctrine that a practice or method which is obviously negligent and dangerous affords no protection to a manufacturer who employs it although it may be in accordance with the custom of the business. Nothing of that kind, however, appears in this case. The witness who testified to the evidence upon which the verdict is sustained also testified that, so far as he knew, nowhere in the world was it employed in practice. His standard therefore appears to me to be theoretical, unworkable, and impracticable, and conformity to it would be the exercise of the most extreme caution and beyond anything reasonably to be expected of a manufacturer in the exercise of ordinary care.
I am of the further view that, even if it be conceded that the exercise of ordinary care requires such an examination, there is nothing in the evidence which shows that such an
Motions for a rehearing were denied, with $25 costs, on March 8, 1932.