Am. Mut. Liab. Ins. Co. of Bos. v. Chain Belt Co.

• Decision Date: 09 March 1937
• Citation: 224 Wis. 155,271 N.W. 828
• Parties: AMERICAN MUT. LIABILITY INS. CO. OF BOSTON et al. v. CHAIN BELT CO. et al.
• Court: Wisconsin Supreme Court

224 Wis. 155

271 N.W. 828

AMERICAN MUT. LIABILITY INS. CO. OF BOSTON et al.

v.CHAIN BELT CO. et al.

Supreme Court of Wisconsin.

March 9, 1937.

Appeal from a judgment of the Circuit Court for Brown County; Henry Graass, Judge.

Affirmed.

On July 29, 1935, the plaintiff American Mutual Liability Insurance Company of Boston commenced this action against the defendant Chain Belt Company, hereafter called the defendant, pursuant to the provisions of section 102.29, Stats., to recover damages based upon payments made, and to be made by it, as compensation insurer of H. P. Jensen, to one John Kuske, for whose injuries the plaintiff asserted the said defendant was responsible. John Kuske, the compensation beneficiary, was made a party defendant. At about the same time a similar action was commenced by John Kuske against the same defendant. Upon motion of the defendant, Kuske's employer, H. P. Jensen, in whose service Kuske was injured, was interpleaded and a cross-complaint served upon him. The action commenced by Kuske was later on dismissed and he was made a plaintiff in this action. Trial was had to the court and a jury.

The jury found, in substance, with the consent of the parties and the court: (1) That the plaintiff Kuske was injured on March 2, 1934, while employed as a form setter in a tunnel which was being constructed by Jensen, in which work a “pumpcrete” machine, leased by the defendant to Jensen, was being used; (2) that the plaintiff's injuries were proximately caused by a “go-devil” which was forced through a pipe used to convey concrete from the mixer to the place where used; and (3) that it was necessary, in order to protect the life, health, safety, and welfare of the employees who were working in front of the end of the conveyor pipe, to warn them that a “go-devil” was being forced through the conveyor pipe. The jury further found (4) that no adequate and sufficient warning was given to such employees that a “go-devil” was coming through and that they should stay away from in front of the end of such pipe; (5) that the failure to warn the plaintiff Kuske was a cause of his injuries; (6) that Kuske was negligent in failing to exercise ordinary care for his own safety; (7) that such failure was a cause of his injuries; (8) that the damages sustained by Kuske for doctor, hospital, and medical expenses, loss of earnings, pain and suffering amounted to $19,225 and (9) that the negligence of the defendant amounted to 70 per cent. and that of Kuske to 30 per cent. of the total negligence.

Upon the coming in of the verdict, the plaintiffs moved to change the answer to the sixth question from “yes” to “no” and for judgment on the verdict as so changed and, in the alternative, for judgment on the verdict as rendered. The defendant, among other things, moved for judgment in its favor notwithstanding the verdict. The court denied the plaintiffs' motions and granted the motion of the defendant. From a judgment entered July 13, 1936, which dismissed the plaintiffs' complaint, the plaintiffs appealed.Charles H. Gorman, of Milwaukee, and Allan V. Classon, M. E. Davis, and Lloyd B. Bongsto, all of Green Bay, for appellants.

Wood, Warner & Tyrrell, of Milwaukee, North, Bie, Duquaine, Welsh & Trowbridge and Chadek & Cornelisen, all of Green Bay, and Jackson M. Bruce, of Milwaukee, for respondents.

NELSON, Justice.

Did the trial court err in granting the defendant's motion for judgment in its favor notwithstanding the verdict? On March 2, 1934, H. P. Jensen, a contractor, was engaged in constructing a concrete sewer for the Metropolitan Sewerage District of Green Bay. American Mutual Liability Insurance Company of Boston carried his compensation risk. The plaintiff Kuske was employed by Jensen. While performing services on that day, he was seriously injured. He thereafter applied for and was awarded compensation, in addition to medical and hospital expenses, amounting to more than $9,000. In this action recovery is sought from the defendant, as a third party who, the plaintiffs assert, was responsible for Kuske's injuries and therefore liable to the plaintiffs under the provisions of section 102.29, Stats.

The sewer under construction was substantially horizontal and was about 40 feet below the surface of the ground. From a shaft which had been sunk to the required depth, a tunnel was excavated. The tunnel was about 6 feet in diameter and 600 feet long. Prior to the time that defendant's “pumpcrete” machine was leased to Jensen and put into operation on the job, the work in the tunnel was largely done by hand labor. Circular forms were set up in the far end of the tunnel, concrete shoveled upon and around them, and tamped into the space between the forms and the surface of the tunnel. The concrete was piped from the surface to the bottom of the shaft, where it was loaded on to small cars and pushed along the tunnel to the place where required.

For about two years prior to March, 1934, the defendant was the exclusive manufacturer of “pumpcrete” machines. Those machines were constructed so as to receive concrete from a mixer and to pump it through a pipe to the place where it was to be used. A “pumpcrete” machine, when successfully operated, saved considerable labor. On or about February 27, 1934, the defendant leased one of its machines to Jensen, under a written lease. The machine was sent to Green Bay accompanied by Andrew Dickson and Floyd Beach, two of the defendant's expert operators. The lease specified the sums that were to be paid by Jensen to the defendant for the services and expenses of their expert engineering representatives, “who shall be in charge of operation and care of leased property, with necessary assistants provided by lessee and who shall be in lessor's employ and under lessee's direction.” On March 1, the day before Kuske was injured, a “go-devil” was forced through the pipe with water ahead of it for the purpose of cleaning out the pipe. The “go-devil” was a dumb-bell or spool-shaped contrivance constructed of steel and rubber which fitted tightly into the conveyor pipe. It was used in connection with compressed air to force sluggish or clogged concrete through the pipe. The “pumpcrete” machine was first put into operation on March 2, 1934. Difficulty arose during the afternoon as a result of the concrete's hardening and clogging in the pipe. When that happened, several sections of the conveyor pipe were taken down by Jensen's employees and the concrete shaken or pushed out by hand. The taking down of several sections of the pipe, however, did not relieve the situation and it was decided to send a “go-devil” through the conveyor pipe to force the concrete out. A “go-devil” was accordingly inserted in the pipe and air pressure applied. That “go-devil,” however, struck in the pipe. It was then decided to insert another “go-devil” because the first one probably was permitting the air to get by it. An air compressing machine was located on the surface near to the “pumpcrete” machine. A heavy piece of steel, referred to in the testimony as a “deflector,” was attached to the end of the conveyor pipe, the purpose of which was to deflect the concrete downward and also to stop the “go-devil” when it reached the end of the pipe. After the second “go-devil” was inserted, and when a sufficient pressure had been attained, the “go-devils” were forced along the pipe,...