Kalkopf v. Donald Sales & Mfg. Co.

• Decision Date: 03 January 1967
• Citation: 33 Wis.2d 247,147 N.W.2d 277
• Parties: Ella KALKOPF et al., Plaintiffs, v. DONALD SALES AND MFG. CO., a Wis. corp. et al., Defendants-Appellants, McKesson & Robbins, Inc., a foreign corp., Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 277

147 N.W.2d 277

33 Wis.2d 247

Ella KALKOPF et al., Plaintiffs, v. DONALD SALES AND MFG. CO., a Wis. corp. et al., Defendants-Appellants McKesson & Robbins, Inc., a foreign corp., Defendant-Respondent.

Supreme Court of Wisconsin.

Jan. 3, 1967.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, Norman C. Skogstad & Thomas N. Klug, Milwaukee, of counsel, for appellants.

Kivett & Kasdorf, Milwaukee, Alan M. Clack, Milwaukee, of counsel, for respondent.

HEFFERNAN, Justice.

The appellants contend that error was committed in several respects in the trial of this case. Was it error to exclude appellant's offer of evidence in regard to the custom and practice in the industry regarding the shipping of acid carboys?

Over the objection of the appellant, the warehouse foreman of McKesson & Robbins was permitted to testify:

'The procedure that we follow is that if we have a complete load of acid we have no reason to secure the load, but in the event there is a partial shipment of acid, we have a chain, chains, fastened to the stakes and these chains have what they call a mighty Mite Chain-Titener, and we secure these containers by means of the chain so that they have no possible chance of falling either backward or sideways, whichever the case might be.'

Subsequent testimony made it clear that it was not the practice for Donald Sales to secure the carboys in that manner, or by piling other merchandise around them, or by tieing them down. Appellant attempted to call an employee of another chemical company, who was qualified as an expert on the selling, crating, and trucking of sulphuric-acid carboys. Appellant's counsel attempted to elicit testimony from him as to whether it was customary in the industry to secure the carboys as respondent's superintendent claimed it did. The court excluded such evidence. Although the record is not completely clear, it seems as though the trial court treated such proffered testimony as an offer of proof that the practice in the industry was contrary to the contention of McKesson & Robbins.

The respondent on appeal takes the position that, in any event, the appellant's practice of transporting acid carboys without securing them to the sides of the truck is patently unsafe and, hence, proof of conformance to a similar industry-wide standard would not be admissible. The respondent is, of course, correct in asserting that, under extreme cases, evidence of custom may merely be evidence of customary negligence and should, therefore, be excluded. This court has recognized this position, stating:

'A usage which is patently unsafe * * * or a custom which is contrary to law cannot be given credence by the court.' Raim v. Ventura (1962), 16 Wis.2d 67, 72, 113 N.W.2d 827, 830.

See also Johannsen v. Peter P. Woboril, Inc. (1952), 260 Wis. 341, 345, 51 N.W.2d 53; and Bellmann v. National Container Corp. (1958), 5 Wis.2d 318, 325, 91 N.W.2d 762. In Marsh Wood Products Co. v. Babcock & Wilcox Co. (1932), 207 Wis. 209, 219, 240 N.W.2d 392, 396, we stated:

'Obviously, manufacturers cannot, by concurring in a careless or dangerous method of manufacture, establish their own standard of care.'

But these are exceptions to the rule and are applicable only if the conduct was so patently unsafe that the court could rule as a matter of law that they should not be given credence and therefore should be excluded. This court recognizes the almost universally accepted rule as stated in Prosser on Torts (hornbook series, 3d ed.), p. 168, sec. 33:

'* * * evidence of the usual and customary conduct of others under similar circumstances is normally relevant and admissible, as an indication of what the community regards as proper, and a composite judgment as to the risks of the situation and the precautions required to meet them. If the actor does only what everyone else has done, there is at least an inferrence that he is conforming to the community's idea of reasonable behavior.'

We stated in Raim v. Ventura, supra, 16 Wis.2d p. 72, 113 N.W.2d p. 830, that:

'While the practice in the community or the custom in the trade is not conclusive as to what meets the required standard for reasonable safety, it may be admissible as evidence in connection therewith depending upon the circumstances of the case.'

And in Bandekow v. Chicago, Burlington & Quincy R. Co. (1908), 136 Wis. 341, 343, 117 N.W. 812, 813, we pointed out:

'* * * proof that the conduct of a defendant coincided with the customary method of doing the business by others under similar circumstances excludes the inference of negligence. * * *'

Accordingly, we conclude that the evidence of custom of the methods of stowing and transporting acid carboys should have been admitted into evidence. There was nothing to indicate that the practice followed by defendant was patently unsafe, and the trial judge made no finding to that effect. A perusal of the record indicates that the testimony was excluded primarily upon the basis of the judge's belief that negligence was, in any event, established by what he considered to be a violation of statutory standards of due care, and that he considered the question of proper storage irrelevant in view of the statutory standards established by sec. 346.94(7), Stats.

Does the violation of sec. 346.94(7), Stats., in regard to spilling loads of waste or foreign matter on the highway, constitute negligence per se?

Sec. 346.94(7), Stats., provides:

'Spilling loads of waste or foreign matter. The operator of every vehicle transporting waste or foreign matter on the highways of this state shall provide adequate facilities to prevent such waste or foreign matter from spilling on or along the highways.'

Over the objection of the appellant, the court instructed the jury:

'You are further advised that under the law of this state, the spilling of foreign matter on highway is prohibited.'

This instruction was given pursuant to the theory that:

'When a statute provides that under certain circumstances particular acts shall or shall not be done, it may be interpreted as fixing a standard for all members of the community, from which it is negligence to deviate.' Prosser, Torts (horbook series, 3d ed.), p. 191, sec. 35.

The Restatement of Torts (2d) suggests guidelines to be followed in determining whether a legislative enactment should be used in the court's determination of the standard of reasonable care in a negligence action:

'Sec. 286. When Standard of Conduct Defined by Legislation or Regulation Will Be Adopted

'The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part

'(a) to protect a class of persons which includes the one whose interest is invaded, and

'(b) to protect the particular interest which is invaded, and

'(c) to protect that interest against the kind of harm which has resulted, and

'(d) to protect that interest against the particular hazard from which the harm results.' Restatement, 2 Torts (2d), p. 25.

'Sec. 288. When Standard of Conduct Defined by Legislation or Regulation Will Not Be Adopted

'The court will not adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively

'(a) to protect the interests of the state or any subdivision of it as such, or

'(b) to secure to individuals the enjoyment of rights or privileges to which they are entitled only as members of the public, or

'(c) to impose upon the actor the performance of a service which the state or any subdivision of it undertakes to give the public, or

'(d) to protect a class of persons other than the one whose interests are invaded, or

'(e) to protect another interest than the one invaded, or

'(f) to protect against other harm than that which has resulted, or

'(g) to protect against any other hazards than that from which the harm has resulted.' Restatement, 2 Torts (2d), p. 31.

Harper and James, Laws of Torts, Vol. 2, p. 997, summarizes the general attitude of courts in the application of the statutory standards n negligence cases, stating:

'Where legislation prescribes a standard of conduct for the purpose of protecting life, limb, or property from a certain type of risk, and harm to the interest sought to be protected comes about through breach of the standard from the risk sought to be obviated, then the statutory prescription of the standard will at least be considered in determining civil rights and liabilities.'

This court has closely followed these principles and, as a shorthand method of expressing the composite of the principles set forth above, has asked whether the statute has as its purpose the protection of public safety or has stated as in Meihost v. Meihost (1966), 29 Wis.2d 537, 540, 139 N.W.2d 116:

'* * * where a statute is designed to protect a class of persons from a particular type of harm, a violation of the statute which results in that type of harm to someone in the protected class constitutes negligence per se.'

In Meihost, supra, we determined that the ordinance providing penalties for leaving a key in an automobile did not result in the finding of negligence per se, when this court determined that the purpose of the underlying statute was not to protect the members of the public against the possibility of the automobile being driven in a negligent manner but was merely for the purpose of deterring the theft of motor vehicles. For a similar rationale, see Reque v. Milwaukee & Suburban Transport Corp. (1959), 7 Wis.2d 111, 114a, 95 N.W.2d 752, 97 N.W.2d 182; Farmers Mut. Automobile Ins. Co. v. Gast (1962), 17 Wis.2d 344, 348, 117 N.W.2d 347; Lloyd v. Pugh (1914), 158 Wis. 441, 445, 149 N.W. 150; Willette v. Rhinelander Paper Co. (1911), 145 Wis. 537, 130 N.W. 853; Schweikert v. John R. Davis Lumber Co. (1911), 145 Wis. 632, 637, 130 N.W. 508...