Hein v. Torgeson, 108
Decision Date | 27 March 1973 |
Docket Number | No. 108,108 |
Citation | 205 N.W.2d 408,58 Wis.2d 9 |
Parties | Norbert HEIN et al., Appellants, v. Forest TORGESON, sole trader d/b/a Navarino Feed & Supply Co., Respondent. |
Court | Wisconsin Supreme Court |
Bachman, Cummings & McIntyre, Appleton, for appellants.
Fulton, Menn & Nehs, Appleton, Peter S. Nelson, Appleton, of counsel, for respondent.
Five issues are raised on this appeal:
1. Did the trial court err in failing to find the defendant causally negligent as a matter of law?
2. Did the trial court err in failing to answer the special verdict questions relating to defendant's failure to warn plaintiffs of the danger of an improper urea mixture?
3. Did the trial court err in failing to instruct the jury (1) that as a matter of law defendant was negligent in failing to have proper mixing instructions and warnings on the urea packages; and (2) as to all elements of damages?
4. Did the trial court err in failing to change the jury's answer to the special verdict damage question?
5. Should a new trial in the interest of justice be ordered?
1. Was Torgeson negligent as a matter of law? Plaintiffs' principal contention on this appeal is that the defendant's undisputed sale of urea was made in an improperly labeled container which violated sec. 94.72(2), Stats., 1 and that this violation constituted negligence per se chargeable to the defendant. From the record it is clear that this contention was never brought to the attention of the trial court during trial or on motions after verdict. This court will not consider new grounds of relief which are not adequately brought to the attention of the trial court. 2 While this rule is one of administration and not of power, 3 there is no compelling reason in this case to depart from the general practice of refusing to consider this contention. In the instant case, the jury found the plaintiffs to be totally causally negligent in the deaths and sickness caused to their cattle. It is abundantly clear from the record that this determination is overwhelmingly supported by credible evidence which all points to the fact that the plaintiffs, knowing that they should be careful about the mixture, went ahead in a careless manner with the resulting over-mixture.
2. Was it error when the trial court failed to rule as a matter of law that defendant's failure to have proper mixing instructions and warnings caused plaintiffs' damages? Plaintiffs argue further that the defendant had a common law duty to warn them of the dangerous propensities of cattle feed too heavily loaded with urea, and his failure so to warn violated this duty and so clearly caused their damages. Their contention is that the trial court committed error when it failed to so rule as a matter of law. In support of their contention, plaintiffs cite this court's decisions in Strahlendorf v. Walgreen Co. 4 and Smith v. Atco Co. 5
While Strahlendorf does stand for the proposition that a retailer may render himself liable for a failure to adequately warn of a product's harmful propensities, 6 this court specifically held the causation issue was a question of fact for the jury to determine. In this respect Strahlendorf does not support the position taken here by the plaintiffs. In that case this court refused to find causally negligent as a matter of law a retailer's failure to place a proper warning on a plastic toy airplane and stated:
(Emphasis added.) 7
In the instant case plaintiff Norbert Hein testified that he became aware of the feeding value of urea through reading trade journals and other literature. While he testified he asked defendant's employee how to mix the urea, the record also indicates Hein was aware that the appropriate mixture was approximately one percent urea to the balance of the ingredients. The jury could have validly concluded Hein was aware of the dangerous propensities of urea. Strahlendorf is applicable to the instant case in mandating.
'The causation issue with respect to the found negligence on the part of the defendant presented an issue of fact for the jury to determine, and the trial court was correct in refusing to disturb its finding.' 8
While in Smith v. Atco Co. this court did say that in certain instances the 'causal connection may be so clear upon undisputed facts as to make the determination of causation one of law for the court, while in other situations it becomes one of fact for the jury,' 9 the court there held that the violation of sec. 94.67, Stats., by virtue of a misbranded can of wood preservative fell within the latter category. Assuming the trial court had determined the causation issue as there was no question relating thereto in the special verdict, the supreme court found no credible evidence to sustain such a finding because there was no evidence that the plaintiff had actually relied on the label which stated 'When dry, wood treated with Penta-Mix can be handled freely without danger of contamination to humans or animals.' 10
In the instant case there was ample evidence that the plaintiff, Norbert Hein, was aware of both the contents of the bag labeled fertilizer-grade urea and its dangerous propensities. While the jury might have concluded that plaintiff relied on the observation of defendant's employee that the cattle would not eat feed too heavily loaded with urea, it is clear from its apportionment of total causal negligence to plaintiffs it did not. This is not a case where the causal connection between the failure to warn of dangerous propensities and the harm caused is so clear that the jury's determination ought to have been supplanted. The evidence was that the appropriate mixture of urea to feed was one percent. Plaintiff Norbert Hein knew this and the jury was justified in believing Hein was adequately advised of the dangerous propensities of urea.
3. Did the trial court err in failing to instruct the jury (1) that the defendant was negligent as a matter of law for failing to have proper mixing instructions and warnings on the urea containers; and (2) as to all elements of damages? Plaintiffs argue that the trial court ought to have instructed the jury that the defendant was negligent as a matter of law for failing to have proper mixing instructions and warnings on the urea containers. Plaintiffs contend that the instruction given was inadequate as it did not sufficiently advise the jury of the defendant's duty to warn of the inherently dangerous qualities of urea. Plaintiffs' argument must fail for two reasons. First, they did not object to the instruction given nor did they offer to amplify that instruction in any particular. Second, the instruction given was adequate.
This court has often reiterated the rule that the failure to request inclusion of instructions or a failure to object to those given operates to waive such alleged error:
11
Although the rule providing for this waiver is not inflexible 12 the requirement for an objection to be made to the trial court has been waived only in extraordinary situations and this is not such a case, particularly in view of the fact that the instruction as given did sufficiently instruct the jury on defendant's duty to warn:
Since the entire trial was conducted along the lines of Torgeson's failure to advise plaintiffs of the proper urea mixing instructions and the potential harmful effects of an improper ratio of urea to feed, it is clear that this instruction was sufficient to the jury as to defendant's duty of care. The jury could have validly concluded that plaintiff Norbert Hein was aware of the potential toxicity of an over-mixture of urea in cattle feed. As pointed out in Strahlendorf, a jury may validly conclude that a failure of warn of potential danger is not causal. 13
With respect to plaintiffs' argument that the trial court ought to have insructed the jury as to all the elements of damages, this court's decision in Essock v. Mawhinney clearly negatives such contention. 14 In Essock the contention on appeal was that the trial court erred in instructing the jury as to the measure of damages. The trial court instructed such measure of damages "is such sum as will reasonably compensate . . . for such loss in property value, if any. . . ." 15 According to this court:
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