231 Wis. 236 | Wis. | 1939
The following opinion was filed March 7, 1939 :
As appears from the foregoing statement, a retailer sold to a customer contaminated kerosene into which the jury found a wholesaler, the Wadhams Oil Company, hereinafter referred to as the “company,” had mixed a quantity of gasoline sufficient to make it a highly dangerous explosive. Plaintiff's decedent used the kerosene to start a fire, and an explosion resulted which set fire to' his clothing and caused burns from which he died. This contamination resulted from one of two1 causes: The mixing of gasoline with kerosene by some person, or from the negligent construction of the venting system of the retail plant which permitted escape of gasoline through the venting system into the kerosene tank in filling a gasoline tank adjacent to the kerosene tank. By the verdict of the jury the cause was found to be negligence of the wholesaler in delivering kerosene to the retailer. If that finding is supported by the evidence the wholesaler must respond in damages.
The appellant assigns as error, (1) that the finding that it put gasoline in with the kerosene in delivering it is not supported by the evidence; and (2) that the assessment of damages for pecuniary loss was excessive. The plaintiff by motion to review claims, (3) that the court erred in deducting $1,250 from the award of damages for pain and suffering.
(1) If the gasoline became mixed with the kerosene through the act of some person, it must have been by the act of the company’s deliveryman, Hansen, the act of Behling’s man in delivering it to the customer, or the act of an inter-meddler. There is no' evidence of the latter, and the latter is unlikely because it would be an intentional wrong, neces
The flash test of the kerosene taken from the kerosene tank after the explosion was 65° F., instead of the test of 105° required by statute, sec. 168.06, and the test of around 155° uniformly stood by the kerosene sold by the defendant company. There was evidence that pouring five gallons of gasoline into forty-five gallons of kerosene in filling an order for fifty gallons of kerosene would produce a mixture that would
Experiments made after the explosion show that in filling the Mobile gasoline tank gasoline would overflow through the venting system of the Behling plant into the adjacent kerosene tank under certain conditions. There is ím proof that such conditions existed at any time the company filled the Mobile gasoline tank between the date it filled the kerosene tank and the explosion. The fill pipe of the Mobile gasoline tank did not overflow at any such filling. While there is evidence that sometimes a bubbling or slight spraying of gasoline occurs at the opening of the fill pipe while filling the Mobile gasoline tank, there is no evidence that this occurred at any such filling. The kerosene tank was installed
From the evidence above detailed, which includes all having appreciable bearing on the question, we are of opinion that the jury was justified in concluding that it was more probable that the contamination of the kerosene resulted from inadvertence of Hansen than from overflow from the venting system, and that it did in fact so result.
(3) Plaintiff’s counsel claims that the court erred in reducing the amount assessed by the jury for pain and suffering from $2,000 to- $750. In this we consider he is correct. The sufferings of the deceased as shown by the evidence were continuous and excruciating. It was impossible to relieve them
However, there can be no recovery by the plaintiff of the amount by which the award was reduced. The plaintiff was given the option of taking judgment for the reduced amount or stand a new trial. Plaving exercised her option and taken judgment she is barred from further recovery. Duss v. Friess, 225 Wis. 406, 273 N. W. 547; Krudwig v. Koepke, 227 Wis. 1, 277 N. W. 670. A plaintiff desiring to contest a reduction of damages, when given an option to accept or stand a new trial, must reject the reduction and appeal from the order granting a new trial. Jolitz v. Fintch, 229 Wis. 256, 282 N. W. 87.
(2) We are of opinion that the award for pecuniary damages was excessive. The jury awarded $9,000 for pecuniary loss. The deceased was fifty-two years old. The highest amount of earnings the testimony would warrant would be $960 per annum. The cost of an annuity of $1 at his age would be $11,164 by the annuity table. Sec. 314.06, Stats. The cost of an annuity of $960 by that table would be ap
By the Court. — The judgment of the circuit court in the action for death by wrongful act is modified by reducing the award of the jury for the item of pecuniary loss to $7,000 and reducing the judgment therein by $2,000, unless the plaintiff shall within twenty days from the filing of the remanded record file its election in writing to take a new trial on the question of damages only, in which event the court shall so order.
A motion for a rehearing was denied, with $25 costs, on May 9, 1939.