Kreyer v. Farmers Co-op. Lumber Co.

• Decision Date: 30 October 1962
• Docket Number: CO-OPERATIVE
• Citation: 18 Wis.2d 67,117 N.W.2d 646
• Parties: Rudolph KREYER, Appellant, v. FARMERS'LUMBER CO., a Wisconsin co-operative association, Respondent.
• Court: Wisconsin Supreme Court

Page 646

117 N.W.2d 646

18 Wis.2d 67

Rudolph KREYER, Appellant, v. FARMERS' CO-OPERATIVE LUMBER CO., a Wisconsin co-operative association, Respondent.

Supreme Court of Wisconsin.

Oct. 30, 1962.

Whelan, Morey & Morey, Mondovi, for appellant.

Wilcox & Sullivan, Eau Claire, for respondent.

WILKIE, Justice.

The issues involved on this appeal are:

(1) Did the plaintiff present to the trial court evidence raising a jury issue?

(2) Was the plaintiff prejudiced by error of the trial court in refusing to allow the plaintiff to proceed with his hypothetical question of his expert, Mr. William Sherman?

(3) Was the plaintiff prejudiced by an error of the trial court in allowing testimony of defendant's expert, Mr. Philip Ruehl, over the objection of the plaintiff?

1. Did the plaintiff present to the trial court evidence raising a jury issue? The trial judge was convinced that this was a case of an unexplained fire. We concur. From the facts recited above it was clear that the trial judge was justified in finding no evidence that would raise a jury question on the claim that the negligence of defendant's workmen actually caused the fire. The well-stated and full opinion of the trial court, dictated from the bench at the time he granted defendant's motion for a directed verdict, is as follows:

'The court will grant the motion. The court does not feel that there is any proof of negligence on the part of Mr. Lovely or his helper. There is absolutely no evidence in the case to tie up their actions or the work that they did, with the fire. It is undisputed that the work which Mr. Lovely did was done in a workmanlike manner and according to the requirements of the code. There is some testimony that other wiring which had been there before did not comply with the code as the code existed at the time of the fire, but it is only a general statement that it does not comply with the code. There is no testimony which indicates what would happen from these wires. There is nothing to indicate they would get hot; that they could produce any short circuits; or produce anything which could cause a fire. There is only a statement that there may have been some wiring which didn't comply with the code. But a mere statement that it doesn't comply with the code does not furnish any proof at all that that condition caused the fire, or could have caused the fire. Disregarding the testimony of the expert called by the defense as to his conclusions as to whether or not the fire could have started--even disregarding that entirely, there is no testimony at all that there were any conditions in or around the fuse box which could have caused a fire. There is nothing to show that those conditions would have produced any heated wires; that they could have probably caused any heat or anything of that sort. The only testimony is that if there was too much load that the fuses would have blown. If the fuses blew, of course, the wire would instantly become dead. The fuses were intact after the fire--all of the fuses, indicating that there was not too much current in the wires. There is testimony in the record that there were flames and sparks coming from the tractor. Whether the witness is in error as to the location of the exhaust does not disprove the statement that there were sparks and flames going into the air. The plaintiff has not attempted in any way to produce any testimony to the contrary. Therefore it stands admitted that there were. Whether that caused the fire I cannot speculate. The court does not feel that there is any evidence at all sufficient to justify the conclusion that the condition of the wiring caused the fire and it would be pure speculation on the part of the jury to attempt to determine the fact.'

2. Was the plaintiff prejudiced by error of the trial court in refusing to allow the plaintiff to proceed with his hypothetical question of his expert, Mr. William Sherman? This leads to a consideration of appellant's main contention that the court committed prejudicial error in refusing plaintiff's counsel the right to proceed with the hypothetical questioning of his expert, Mr. Sherman. The witness was called by the plaintiff and it was conceded that he was a qualified electrician. He went to the farm on June 27, 1960, 'to determine in my own mind how the barns burned down.' In the course of his testimony his counsel asked him a hypothetical question of more than 600 words. This question assumed facts which the plaintiff contended were in evidence and at the conclusion of the question, Mr. Sherman was asked 'do you have an opinion to a reasonable certainty from an electrician's point of view, as to the cause of the fire--do you have an opinion?' Counsel for the defense objected to the question for four reasons: 'As being improper hypothetical question invading province of jury, assumes facts not in evidence, not sufficient foundation and witness not a fire expert.' The trial court sustained the objection on the grounds: 'as invading province of jury and lack of foundation.'

Trial courts have wide discretion as to admitting opinion evidence of expert witnesses. Anderson v. Eggert (1940), 234 Wis. 348, 291 N.W. 365; Henthorn v. M. G. C. Corp. (1957), 1 Wis.2d 180, 83 N.W.2d 759, 79 A.L.R.2d 142.

The principal rule on whether or not expert opinion evidence should be received is stated in the Anderson Case, supra, where the court held 234 Wis. at p. 361, 291 N.W. at p. 370:

'Whether the testimony was properly received in this case depends upon whether members of the jury having that knowledge and general experience common to every member of the community would be aided in a consideration of the issues by the testimony offered and received.' ¹

In the instant case there is no question but what the witness was asked to give his expert opinion on an ultimate fact to be determined by the jury, to wit: was the barn fire caused by faulty wiring (presumably that installed by the defendant). We find no Wisconsin authority that holds this to be an unwarranted invasion of the province of the jury. In Maitland v. Gilbert Paper Co. (1897), 97 Wis. 476, 484, 72 N.W. 1124, 65 Am.St.Rep. 137, an expert was asked to give an opinion on an ultimate fact and the court, in a decision written by Mr. Justice Marshall, held:

'Where evidentiary facts, upon which the fact in issue depends, are in dispute, opinion evidence as to the ultimate fact must be given upon a hypothetical case. Luning v. State, 2 Pin. 215; Wright v. Hardy, 22 Wis. 348; Kreuziger v. [C. & N. W.] Railway Co., 73 Wis. 158, 40 N.W. 657. The rule is that experts are not to decide issues of fact, hence all questions calling for opinion evidence must be so framed as not to pass upon the credibility of any other evidence in the case, else it will usurp the province of the jury or the court. Jones, Ev. § 374, and cases cited.'

In other words, the rule is that an expert may give an opinion on an issue of ultimate fact but only on a hypothetical question. This is precisely what plaintiff attempted to do here. In Daly v. The City of Milwaukee (1899), 103 Wis. 588, 590, 79 N.W. 752, the court declared that it was 'well settled that the opinions of witnesses which do relate to matters of science, art, or skill in some particular calling are admissible in evidence.' And further: 'Of course, such opinions must be based upon proper questions; but they are not objectionable merely because they cover one of the ultimate facts to be determined by the jury.' ²

We conclude that the objection to the hypothetical question on the ground that 'it invaded the province of the jury' was not well taken and that the trial court erred in sustaining the objection on that ground, although as is indicated later we hold that the trial judge properly sustained the objection on the ground that there was lack of foundation. The subject of the electrical wiring in the barn and its role in connection with the fire is one which was beyond the common knowledge of the jury and concerning which the jury obviously would be enlightened by expert testimony Was the hypothetical question properly objected to on the further grounds that the question 'assumes facts not in evidence?'

Wisconsin courts have long approved the use of hypothetical questions. Crouse v. Chicago & Northwestern R. Co. (1899), 102 Wis. 196, 78 N.W. 446, 778. The purpose of a hypothetical question is to give the jury the benefit of an expert opinion upon one or another of several situations which may be found to exist in the evidence. The key point in a hypothetical question is the facts that are assumed and form the premises. If these facts fail in any important particular then necessarily the answer or conclusion that assumes the facts must fail.

A hypothetical question need not assume as proved all facts which the evidence in the case tends to prove, but only those which tend to be proved and on the basis of which a correct answer is sought. Sullivan v. Minneapolis, St. P. & S. S. M. R. Co. (1918), 167 Wis. 518, 167 N.W. 311. ³

In the instant case respondent on this appeal contends that certain vital facts were omitted from the hypothetical question. He also argues that some facts were included that were not proven by the evidence. In any event, counsel did not specifically identify these objections when the question was asked in the trial court and Wisconsin law requires him to be specific on these objections. Davey v. The City of Janesville (1901), 111 Wis. 628, 633, 87 N.W. 813; Kliegel v. Aitken (1896), 94 Wis. 432, 436, 69 N.W. 67, 35 L.R.A. 249; Selleck v. City of Janesville (1898), 100 Wis. 157, 163, 75 N.W. 975, 41 L.R.A. 563; Allen v. Voje (1902), 114 Wis. 1, 9, 89 N.W. 924.

The three facts omitted from the question according to the respondent are:

'(1) The presence of the tractor that was spouting sparks and flames near the barn just prior to the outbreak of the fire; (2) the fact that no fuses blew out; (3) the absence of...