Hupfer v. Nat'l Distilling Co.

Citation106 N.W. 831,127 Wis. 306
PartiesHUPFER v. NATIONAL DISTILLING CO.
Decision Date23 February 1906
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by George Hupfer, as administrator, against the National Distilling Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This action is brought to recover damages for the death of the plaintiff's intestate September 13, 1899, caused by the bursting of a large circular tank or vat containing distilling slops. This case has been here on two former appeals and the facts involved and the questions determined may be found in 114 Wis. 279, 90 N. W. 191, and 119 Wis. 417, 96 N. W. 809. At the close of this last trial the jury returned a special verdict to the effect (1) that Simon Hupfer died September 13, 1899, on account of injuries sustained by the bursting of defendant's slop vat on said day; (2) that at the time of the bursting of said vat the hoops on said vat were so rusted as to be defective and unfit for the purpose for which they were used; (3) that the defendant knew of such defective condition of said hoops in time to have remedied such defects, before the accident; (4) that the defendant in the exercise of ordinary care ought to have known of such defective condition of said hoops in time to have remedied same before the accident; (5) that such defective condition of said hoops was the proximate cause of the injury to deceased; (6) that the deceased Simon Hupfer, was not guilty of any want of ordinary care which contributed to the injury resulting in his death; (7) that they assessed the plaintiff's damages at $4,000. From the judgment entered in favor of the plaintiff upon such verdict for the amount stated, with costs, the defendant brings this appeal.O'Connor, Schmitz & Wild, for appellant.

Joseph B. Doe, for respondent.

CASSODAY, C. J. (after stating the facts).

This case has been here upon two former appeals. 114 Wis. 279, 90 N. W. 191, 119 Wis. 417, 96 N. W. 809. On the first appeal the judgment in favor of the plaintiff was reversed for error. The second appeal was from a judgment of nonsuit and the same was reversed and the cause was remanded for a new trial. It is now urged, among other things, that the trial court erred in refusing to direct a verdict in favor of the defendant on the merits. This claim was presented and to some extent considered on both of the former appeals. The evidence is close upon some material questions, but it cannot be said, as a matter of law, that there was error in refusing to direct a verdict in favor of the defendant. Nor can we say from the undisputed evidence, that there was error in refusing to set aside the answers of the jury to the second, third, fourth, fifth and seventh questions of the special verdict, and when so amended, to enter judgment thereon in favor of the defendant. The plaintiff's witness, Mitchell, as a chemical expert, testified that he never had any experience or practical knowledge in ascertaining as to how thick a healthy and sound board or plank might be to permit lactic acid or slop containing lactic acid to penetrate it; that he never experimented to ascertain whether 72/100 of 1 per cent. of lactic acid contained in a fluid would seep through a healthy two-inch plank--and never made any experiment at all in that line; that he knew something about the seepage of lactic acid in dilution with aqueous infusion from actual experience; that as far as the wood was concerned and as far as water of that temperature was concerned, the slop mentioned would not seep more than water; that water of that temperature would have about the same amount of seepage; that the lactic acid would not add to the seepage quality through the wood appreciably; and that he new that water would not seep through a tub or vat constructed of sound three-inch staves tightly clasped together, so that it would percolate through the wood or leak appreciably. After so testifying, the witness was allowed against objection to answer the question whether, under the conditions described, the lactic acid in the slops would percolate or seep through the staves of such tub to any extent; and in giving such testimony he stated, in effect, that he knew there would be more or less seepage, and in case of the vat described and the character of the slops mentioned there would be an effect upon the hoops on account of such seepage and percolation, and that the hoops would be corroded or eaten thereby. Such testimony was upon a vital point in the case and we are constrained to hold that the witness was not qualified to so testify as such expert; and hence that the ruling so complained of was error.

2. Error is assigned for admitting in evidence photographs of what the plaintiff claims to have been the same hoops which were around the tank at the time it burst; and for refusing, at the close of all the testimony, to strike such photographs from the record. The admission of such photographs has been one...

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5 cases
  • Affett v. Milwaukee & Suburban Transport Corp.
    • United States
    • Wisconsin Supreme Court
    • November 29, 1960
    ...in its determination has been held error. Otto v. Milwaukee Northern R. Co., 1912, 148 Wis. 54, 134 N.W. 157; Hupfer v. National Distilling Co., 1906, 127 Wis. 306, 106 N.W. 831; Jacoby v. Chicago, M. & St. P. R. Co., 1917, 165 Wis. 610, 161 N.W. 751, 164 N.W. 88. The rationale of these cas......
  • Schulz v. Gen. Cas. Co.
    • United States
    • Wisconsin Supreme Court
    • December 5, 1939
    ...limited the recovery for pecuniary loss to $12,500 and for loss of society to $2,500, sec. 331.04 Stats. In Hupfer v. National Distilling Co., 127 Wis. 306, 313, 106 N.W. 831, a statement by the trial court in its charge to jury to the effect that the jury could not allow damages in excess ......
  • Mueller v. Silver Fleet Trucking Co.
    • United States
    • Wisconsin Supreme Court
    • June 7, 1949
    ...or consequence of findings in a special verdict, Schulz v. General Casualty Co., 233 Wis. 118, 288 N.W. 803; Hupfer v. National Distilling Co., 127 Wis. 306, 313, 106 N.W. 831;Jacoby v. Chicago M. & St. P. R. Co., 165 Wis. 610, 622, 161 N.W. 751,164 N.W. 88,-literally follow the provision t......
  • Otto v. Milwaukee N. Ry. Co.
    • United States
    • Wisconsin Supreme Court
    • January 9, 1912
    ...given? This court has, as counsel for appellant suggest, pretty plainly advised against such a practice. Hupfer v. Nat. Distilling Co., 127 Wis. 306, 313, 106 N. W. 831. The law placed no such limit as a guide for the jury. The pleading placed no such limit. True, the prayer was for $5,000,......
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