Jagmin v. Simonds Abrasive Co.

• Decision Date: 12 November 1973
• Docket Number: No. 173,173
• Citation: 211 N.W.2d 810,61 Wis.2d 60
• Parties: Harry J. JAGMIN, Appellant, v. SIMONDS ABRASIVE CO., a sub-division of Wallace-Murray Corp., Respondent.
• Court: Wisconsin Supreme Court

Page 810

211 N.W.2d 810

61 Wis.2d 60

Harry J. JAGMIN, Appellant, v. SIMONDS ABRASIVE CO., a sub-division of Wallace-Murray Corp., Respondent.

No. 173.

Supreme Court of Wisconsin.

Nov. 12, 1973.

Larry W. Rader, Wausau, for appellant.

Genrich, Terwilliger, Wakeen Piehler & Conway, Wausau, for respondent.

WILKIE, Justice.

Three issues are raised on this appeal.

1. Was there sufficient evidence to support the special verdict?

2. Is the plaintiff 50 percent negligent as a matter of law?

3. Are the damages awarded inadequate?

Sufficiency of the Evidence.

The trial court directed a verdict for the defendant because it concluded that the plaintiff had failed to meet his burden of proof. The elements which must be proven to establish liability under the theory of strict liability were set forth in Dippel v. Sciano ¹ in which case Rule 402A of the Restatement of Torts was adopted in this state. The plaintiff must prove (1) that the product was in a defective condition when it left the possession or control of the seller, (2) that it was unreasonably dangerous to the user or consumer, (3) that the defect was a cause (a substantial factor) of the plaintiff's injuries or damages, (4) that the seller engaged in the business of selling such product and (5) that the product was one which the seller expected to and did reach the user or consumer without substantial change in the condition it was in when he sold it. The trial court here specifically found that there was failure to prove a defect existed when the grinding wheel left the seller's control and also ruled that the proof on causation was also lacking.

We have repeatedly held that a cause should be taken from the jury and a verdict directed against a party only when the evidence gives rise to no dispute as to the material issues or only when the evidence is so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion. If there is any evidence other than mere conjecture or incredible evidence to support a contrary verdict, the case must go to the jury. ²

'Nevertheless, the plaintiff in a tort case does have the burden of proof and, in meeting this burden, he must come forward with evidentiary facts that establish the ultimate facts; and the degree of proof must be such as to remove these ultimate facts from the field of mere speclation and conjecture. . . . A jury cannot be allowed to merely theorize negligence from what might be a mere possibility.' ³

All authorities recognize that in a products liability case the plaintiff must establish that there was a defect in the defendant's product, but 'defect' has been defined on a case-by-case basis and has not been susceptible of any general definition. ⁴ The question of what amount of evidence is sufficient to establish a defect is one of first impression in Wisconsin. The trial court held here in effect that the mere circumstance of the wheel breaking did not give rise to a reasonable inference that it was defective in light of the fact that it had been used for some period of time before the accident. The trial court stated:

'It is undisputed that whatever wheel Mr. Jagmin was using at the time of the accident had been used for some period of time. If the wheel examined by the defendant was in fact the wheel that caused the injuries, it clearly was used to such a point that one might have very well argued that its worn out condition caused Mr. Jagmin's injuries. Be that as it may, no expert testimony was offered nor can any inference be made in this court's opinion from the the statement in the report that any defect existed in any wheel that caused Mr. Jagmin's injuries.'

An article in the Insurance Law Journal discussed the problem of proving defects in roducts. ⁵ The author stated that mere proof that the product exploded or disintegrated adn an injury resulted may not be enough. He suggested that testimony may be presented to prove by:

'. . . (1) Direct evidence of an expert the specific defect; (2) circumstantial evidence, through use of expert opinion, the specific defect which caused the product failure; (3) direct evidence, of the user and orther eyewitnesses, of product failure or malfunction, supported by expert-opinion evidence that any one of several actual or probable or possible causes constitutes a defective condition either of manufacture or design; (4) inferential evidence of a defect by negating other probable causes.'

Here the trial court was correct in deciding that the plaintiff did not produce expert testimony to give an opinion on posible causes of the breakage of the wheel. Since the wheel had been destroyed after the Industrial Commission hearing through the fault of neither party, the plaintiff could not offer any direct expert evidence based on an examination of the wheel. The plaintiff did call adversely James Price, who was head of the defendant's laboratory which tested the ingredients in the manufacturing process and examined products returned as defective. Plaintiff's counsel had Price describe the process by which the grinding wheels in question are manufactured. In involves a complex measuring and mixing process and counsel apparently hoped to show at what points problems could arise which would result in defects in the finished product. In counsel's questioning of Price, the most he drew out was that the company was concerned about the 'controlled density of the wheel' and that a pressing machine is supposed to control that, although some wheels were hand pressed. Nothing was elicited as to result of a variation in density.

Thus the plaintiff's case rests mainly on the inference that no breakage of the wheel would occur without a defect. This inference would be similar to the inference of negligence under the theory of res ipsa loquitur. The trial court in this case felt that this was not a reasonable inference, given the fact that the wheel had been used for a certain period of time before the accident.

This position was taken in several cases (all from other states) cited by the defendant. In D'Allesandro v. Edgar Murray Supply Co. ⁶ the court found no evidence of an original defect in a grinding stone which broke and struck the operator and killed him. The stone was used for sharpening knives and had been delivered on August 9, 1962, and used until the accident on September 24, 1962. The court said:

'The wooden shipping crate in which the stone was packed was undamaged. The stone itself, the sides of which were clearly visible through the slats of the crate, appeared undamaged and without visible defect. There is no evidence of any sort tending to establish the existence of any sort of defect in the stone prior to its delivery to deceased. The very fact that the stone had been used by the deceased before its disintegration to the extent that four inches were worn off the diameter of the stone is an indication of the fact that the stone was not defective when received by him. There is no evidence of what happened to the stone during the period from August 9, 1962, when it was received by deceased, and September 24, 1962, when it disintegrated, other than the fact that it had been used and worn to the entent of four inches off of the diameter.'

In Markwell v. General Tire and Rubber Co. ⁷ the court held it was proper to grant a directed verdict for the defendant where an examination of an allegedly defective tire which had collapsed and caused plaintiff's car to overturn failed to show any leaks and the tire had been on the plaintiff's car seven months. This court even made statements that it felt a res ipsa loquitur type inference would not be appropriate because the manufacturer had no control over the tire at the time of the accident. The court felt that there was no more probability that the tire had any defect when it left the manufacturer's possession than that it had been subsequently created.

In State Stove Manufacturing Co. v. Hodges, ⁸ the court held that where a contractor did not install recommended pressure valves on a hot water heater, the product did not reach the consumer without substantial change. But the court also added:

'Moreover, there is no evidence to show that the heater, as manufactured by appellant, was in a defective condition and unreasonably dangerous. Thermostats are mechanical in nature, not safety appliances, and the evidence reflects the obvious fact that all mechanical devices may fail at one time or another. The mere fact that they locked in the 'on' position does not suffice to show that the thermostats were defective when manufactured. Any mechanical contrivance may fail to work. Their failure to function after the lapse of seven months of use does not indicate a defect at the time the heater left the manufacturer. . . .'

But an Illinois case realized that the requirement that a defect must exist when it leaves the control of the manufacturer does not mean the defect must manifest itself at once. In Dunham v. Vaughan & Bushnell Mfg. Co. ⁹, the Illinois Supreme Court held that whether a hammer which injured the plaintiff when a chip from the face of the hammer broke off and struck the plaintiff in the eye was defective was a question for the jury. The hammer in this case had been used for eleven months. Both sides offered expert testimony of a metallurgist and neither found any flaws in forging or any defects due to the process of manufacture. Both experts said that use will make it more likely to chip or shear because work hardening can cause metal failure. There was no evidence of misuse. The court summarized the evidence as showing that a new hammer is unlikely to chip but that after some period of use work hardening might make chipping a reasonable expectation and part of the hammer's likely performance. The court realized that problems arise in the middle range. How long should a manufacturer be liable for his product? The Illinois court decided the answer was for the...