Koehler v. Thiensville State Bank
| Decision Date | 06 June 1944 |
| Parties | KOEHLER v. THIENSVILLE STATE BANK et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Ozaukee County; Edward J. Gehl, Judge.
Affirmed.
Action by Ella Koehler, plaintiff, against Thiensville State Bank and Diebold Safe and Lock Company, defendants, commenced on October 2, 1942, to recover damages as a result of injuries sustained through the explosion of a tear gas system installed in defendant bank by Diebold Safe and Lock Company. The action was tried to the court and jury. At the conclusion of the evidence each party moved for a directed verdict. The trial court took an advisory verdict from the jury on the issue of damages only and thereafter, upon oral arguments and filing of briefs, ordered and entered judgment on November 12, 1943 for plaintiff against defendant bank in the sum of $5381.80 damages and for costs and disbursements in the sum of $299.86. The judgment dismissed plaintiff's complaint and defendant bank's cross-complaint against Diebold Safe and Lock Company with costs. Defendant bank appeals. Motion for review by plaintiff. The material facts will be stated in the opinion.
Bendinger, Hayes & Kiuwin, of Milwaukee, for Thiensville State Bank, defendant and appellant.
Walter D. Corrigan, Sr., John J. Hurth, and Thomas M. Corrigan, all of Cedarburg, for Ella Koehler, appellant and respondent.
James E. Coleman, of Milwaukee (William J. McCauley, of Milwaukee, of counsel) for Diebold Safe & Lock Co., for respondent.
No question is raised upon this appeal as to the amount of damages. Appellant contends that there is no evidence to sustain the finding of negligence on its part or liability under the safe place statute, and that in any case, it is entitled to a judgment over against the defendant, Diebold Safe and Lock Company. The nature of the contentions requires a review of the facts.
In June, 1931 defendant had installed in its plant by defendant Safe and Lock Company a tear gas system designed to prevent daylight holdups. The manufacturer of the system was the Lake Erie Chemical Company of Dayton. The contract of sale provided that the bank would have the system examined annually by an expert for a period of three years at a charge of $30 per year. The Safe and Lock Company also had charge of the inspections of other bank equipment at an annual fee. Inspection of the tear gas machine by the Safe and Lock Company continued after the three years, the last inspection being made about four months before the accident.
On April 11, 1940 while plaintiff was conducting business at the cashier's cage as a customer, the tear gas system exploded and gas and powder from a nozzle directly in front of plaintiff burned her, resulting in the injuries for which the suit is maintained. The testimony of the employees of the bank is to the effect that there was no manual operation of the controls of the system which could account for the explosion. At the time of the accident there were just four people in the bank, two employees and two customers.
The device had two sets of foot controls, one in front of each of the windows. To operate one of these controls the operator would reach his foot forward about six inches and with the top of the shoe press upward underneath a bar-like device. After pushing upwards the technique was to release the bar. The first operation would light warning lights at convenient places in the bank. To discharge tear gas the operation was repeated. The first raising of the foot pedal caused a short circuit which turned on the warning lights. In order to set off the tear gas mechanism this short circuit had to be cleared up and a second short circuit induced by the second raising of the pedal. There were also controls at the desks operated by hand buttons so that any employee could easily put the system into operation. The hand controls, like the pedals, required two manipulations to discharge the gas. It is undisputed that four months prior to the accident the inspection of the system showed it to be in perfect working order. It is also undisputed that about six weeks prior to the accident the janitor in the bank in cleaning accidentally tripped one of the foot controls, putting on the warning lights. Telephonic instructions from the Diebold Safe and Lock Company's expert were followed and the system was reset by employees of the bank.
After the explosion the Lock Company's expert came immediately to the bank, looked over the system, cleaned up the tear gas nozzle, and reset the system. He testified that in his opinion, the device was properly installed and maintained down to the time of the explosion and would not have exploded without use of the tripping device.
Following this visit, a representative of the Underwriters Laboratories inspected the machine and in doing so, dismantled the system to such an extent that he found himself unable to restore it to running condition without assistance from the Diebold Safe and Lock Company expert. In February, 1943, the plaintiff undertook an inspection of the system to determine, if possible, the causes for explosion. Two alleged defects were discovered: (1) An insulated staple driven through two of the wires of a control box, and (2) two small pieces of solder in a control box. Expert testimony to show that these could account for the explosion was ruled out upon the ground that it related to the condition of the machine too long after the accident.
The trial court's theory was that since the machine was in the custody of the bank and if properly inspected, cared for and operated, not likely to cause injury, the mere happening of the explosion was evidence of negligence on the part of the bank, under the doctrine of res ipsa loquitur. From the evidence as a whole, the trial court inferred that negligence in respectof maintenance and inspection had caused the explosion.
The bank insists that no such negligence was proved and that the doctrine of res ipsa loquitur cannot apply because the bank neither manufactured, inspected, nor manually operated the system. If the bank is wrong upon this point, it maintains that the source of its liability must be negligence on the part of the Diebold Safe and Lock Company, and that the latter should sustain the liability. It claims that the safe place statute does not apply because it had no notice of any defects in the system.
The bank insists that this is just another case like Dahl v. Krause Milling Co., 234 Wis. 231, 289 N.W. 626, where the cause of an explosion and the existence of fault were held to be matters of speculation and guess. The contention is based upon the following interpretation of facts. The device was properly installed and could discharge tear gas only by the succession of two short circuits, the first of which must be cleared before the other could operate. The trial court believed testimony that the machine was not manually operated. All the evidence is that the machine was in perfect condition four months before the accident. It evidently was in perfect condition when the janitor accidentally tripped it because it turned on the warning lights.
The alleged defects consisting of an insulated staple driven through two of the wires of one of the control boxes and some loose solder in one of the other control boxes were not discovered until three years after the accident, and after the machine had been taken apart and put together again and it is said to be impossible to account for the accident on this basis. The foregoing is claimed to make it impossible to do more than guess at the issues of cause and fault.
The trial court considered the situation to be a proper one for application of the rule of res ipsa loquitur. The doctrine of res ipsa loquitur, as expounded by the Wisconsin cases, offers some difficulties. In Rost v. Roberts, 180 Wis. 207, 192 N.W. 38, 40 it was said:
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