Klassa v. Milwaukee Gas Light Co.

• Decision Date: 05 June 1956
• Citation: 77 N.W.2d 397,273 Wis. 176
• Parties: Leo KLASSA et al., Appellants, v. The MILWAUKEE GAS LIGHT CO., Respondent. Anna LEPIANKA, Appellant, v. The MILWAUKEE GAS LIGHT CO., Respondent.
• Court: Wisconsin Supreme Court

Page 397

77 N.W.2d 397

273 Wis. 176

Leo KLASSA et al., Appellants, v.The MILWAUKEE GAS LIGHT CO., Respondent.

Anna LEPIANKA, Appellant, v.The MILWAUKEE GAS LIGHT CO., Respondent.

Supreme Court of Wisconsin.

June 5, 1956.

Alfred Rozran and Arlo McKinnon, Milwaukee, for appellants.

Fairchild, Foley & Sammond, Marvin E. Klitsner, John E. Loomis, Milwaukee, for respondent.

CURRIE, Justice.

In the case of Waube v. Warrington, 1935, 216 Wis. 603, 258 N.W. 497, 98 A.L.R. 394, this court held that a person who is out of range of ordinary physical peril, cannot recover for injuries sustained as a result of shock or fright induced by witnessing another's danger, even though such other person has been injured or placed in peril by the negligent act of the defendant.On this appeal we are faced with the issues of whether the facts of the instant case properly bring it within the rule of the Waube case.

Unfortunately we do not have available a transcript of the testimony due to the fact that the appeal reaches us without any bill of exceptions having been settled.We are, therefore, limited to gleaning the facts from admissions contained in the pleadings and from those stated in the learned trial judge's memorandum decision.

On April 25, 1951, employees of the defendantGas Company were admitted to the home occupied by the plaintiffs Mr. and Mrs. Klassa in the city of Milwaukee for the purpose of installing a gas pressure regulator.While these employees were engaged in such installation activities in the basement of the Klassa home, gas escaped and ignited, causing a fire.The plaintiffs allege that such ignition was accompanied by an explosion but this is denied by the defendant.

At the time of such ignition Mrs. Klassa was in the laundry room in another part of the basement, while her sister, Mrs. Lepianka, was upstairs.Two sons of Mrs. Klassa were also in the basement at the time that the ignition occurred, but the trial judge's memorandum opinion states that neither was 'in imminent danger of physical harm'.

Mrs. Klassa then went upstairs and outside into the yard.Mrs. Lepianka, who had heard her sister outdoors, also came outside and asked Mrs. Klassa what had happened.One of Mrs. Klassa's sons came up from the basement and assured his mother than he was all right and then went back down into the basement to get his brother and some of his belongings.When this occurred one of defendant's employees was in the process of attempting to put out the fire.There is no claim made that either Mrs. Klassa or Mrs. Lepianka sustained any injuries as a result of any physical impact from the ignition, but the alleged injuries for which recovery of damages is sought were solely the result of shock and fright.

These are substantially all of the meager facts with which this court has been provided by the record properly before us on this appeal.The defendant took the position during the trial that the shock and fright of Mrs. Klassa and Mrs. Lepianka was caused by their apprehension for the safety of the two Klassa sons who were in the basement at the time the ignition occurred, which shock and fright did not take place at the time of the original ignition but later when both women were out in the yard and discovered that the Klassa sons were in the basement.On the other hand, the plaintiffs claimed that these two ladies sustained such shock and fright as a result of fear for their own safety while they themselves were inside the house in a position of peril.

Because of these conflicting contentions, the trial court included questions 3(a) and (b) in the special verdict, which questions inquired as to whether Mrs. Klassa and Mrs. Lepianka were within the field of physical danger through explosion or fire at the time they sustained their shock or fright.The memorandum decision of the trial court cites the Waube case as a justification for including questions 3(a) and (b) in the special verdict.We, therefore, deem that an analysis of such case, and of the reasoning underlying the same, is essential to the proper determination of the instant appeal.

The plaintiff husband, in the Waube case, sought to recover for the wrongful death of his wife.The complaint alleged that the defendant negligently operated an automobile so as to strike and kill the infant child of Mr. and Mrs. Waube, and that as a result thereof Mrs. Waube became sick and prostrated through fright, shock, and excessive, sudden emotional disturbances which caused her death seventeen days later.It was conceded that Mrs. Waube had not been put in peril or fear of physical impact to herself as a result of the defendant's negligence.The trial court overruled a demurrer to the complaint, but this court reversed with directions to sustain the demurrer.

The opinion in the Waube case was written by Mr. Justice Wickhem, and he pointed out that the problem before the court could not be solved by merely applying the principles of proximate cause, but properly had to be approached from the standpoint of whether the defendant owed any duty to Mrs. Waube, in view of the fact that defendant's actions did not personally endanger her.If the determination of the case were to have been approached solely from the standpoint of proximate cause, it is apparent that the opposite result would have been reached than was.This is because it is not necessary in order for an act to be negligent that the actor should reasonably have foreseen the particular injury which did result from such act so long as he should have foreseen that harm was likely to be caused to someone by reason thereof; and, once negligence has been established, foreseeability is not an element of proximate cause.Pfeifer v. Standard Gateway Theater, Inc., 1952, 262 Wis. 229, 55 N.W.2d 29.The classic statement of this principle is that appearing in the opinion of Mr. Justice Mitchell in Christianson v. Chicago, St. P., M. & O. Ry. Co., 1896, 67 Minn. 94, 69 N.W. 640, 641, as follows:

'Otherwise expressed, the law is that if the act is one which the party ought, in the exercise of ordinary care, to have anticipated was liable to result in injury to others, then he is liable for any injury proximately resulting from it, although he could not have anticipated the particular injury which did happen.Consequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act, are natural and proximate; and for such consequences the original wrongdoer is responsible, even though he could not have foreseen the particular results which did follow.'

Mr. Justice Wickhem, in support of the conclusion expressed by him in his opinion in the Waube case, that the defendant owed no duty to Mrs. Waube, cited the decision of Mr. Chief Judge Cardozo in Palsgraf v. Long Island R. Co., 1928, 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253.For the history of the Palsgraf case, and a keen analysis thereof, see the recent article entitled 'Palsgraf Revisited' by Dean William L. Prosser in 52 Michigan Law Review 1.This court also had further occasion to analyze the Palsgraf decision in Pfeifer v. Standard Gateway Theater, Inc., supra, 262 Wis. at pages 238-239, 55 N.W.2d 29.A close reading of Mr. Justice Wichhem's opinion in the Waube case clearly discloses that he recognized that the conclusion reached was grounded upon judicial policy.This appears from the following statement in the opinion, 261 Wis. at page 613, 258 N.W. at page 501:

'The answer must be reached by balancing the social interests involved in order to ascertain how far defendant's duty and plaintiff's right may justly and expediently be extended.It is our conclusion that they can neither justly nor expediently be extended to any recovery for physical injuries sustained by one out of the range of ordinary physical peril as a result of the shock of witnessing another's danger.Such consequences are so unusual and extraordinary, viewed after the event, that a user of the highway may be said not to subject others to an unreasonable risk of them by the careless management of his vehicle.Furthermore, the liability imposed by such a doctrine is wholly out of proportion to the culpability of the negligent tort-feasor, would put an unreasonable burden upon users of the highway, open the way to fraudulent claims, and enter a field that has no sensible or just stopping point.'(Emphasis supplied.)

Whenever a court holds that a certain act does not constitute negligence because there was no duty owed by the actor to the injured party, although the act complained of caused the injury, such court is making a policy determination.For an excellent demonstration of the truth of this, we quote from the aforementioned article by Dean Prosser in 52 Michigan Law Review 1, 14-15, as follows:

'For more than two generations it has been repeated that there can be no duty toward an unborn child; now all of a sudden the cases on prenatal injury are going the other way.It used to be held that one who gets himself into danger owes no duty to a rescuer injured in saving him; now all at once the duty is there.It was once well settled law that one who negligently made misrepresentations could owe no possible duty to a third person into whose hands they might come; there is now respectable authority that in some situations such a duty can be found.It was once the law that a landlord leasing a small shop for the admission of the public owed no duty to those who entered; all of the recent cases agree that the duty is clear.

'These are shifting sands, and no fit foundation.There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it.Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question.When we find a duty, breach and damage, everything has been said.The word serves a useful purpose in directing attention...