Lobermeier v. General Telephone Co. of Wisconsin

• Citation: 119 Wis.2d 129,349 N.W.2d 466
• Decision Date: 14 August 1984
• Docket Number: No. 82-240,82-240
• Parties: Bruce LOBERMEIER, Plaintiff-Respondent-Petitioner, v. GENERAL TELEPHONE COMPANY OF WISCONSIN, a domestic corporation, and American Motorists Insurance Company, a foreign insurance corporation, Defendants- Appellants.
• Court: United States State Supreme Court of Wisconsin

Page 466

349 N.W.2d 466

119 Wis.2d 129

Bruce LOBERMEIER, Plaintiff-Respondent-Petitioner, v. GENERAL TELEPHONE COMPANY OF WISCONSIN, a domestic

corporation, and American Motorists Insurance

Company, a foreign insurance

corporation, Defendants- Appellants.

No. 82-240.

Supreme Court of Wisconsin.

Argued Feb. 28, 1984.

Decided June 13, 1984.

Reconsideration Dismissed Aug. 14, 1984.

Arthur DeBardeleben, Park Falls, for plaintiff-respondent-petitioner; DeBardeleben & Snyder, Park Falls, on brief (in court of appeals).

Thomas Terwilliger, Wausau, for defendants-appellants; Thomas Terwilliger and Terwilliger, Wakeen, Piehler, Conway & Klingberg, S.C., Wausau, on brief (in court of appeals).

HEFFERNAN, Chief Justice.

This is a review of an unpublished court of appeals decision, 113 Wis.2d 721, 334 N.W.2d 588, dated April 19, 1983, which reversed a judgment of the circuit court for Price county, William E. Chase, Circuit Judge, which, following a jury verdict, ordered plaintiff Lobermeier to recover damages for injuries to his hearing when, according to the verdict, an improperly grounded telephone he was using conducted an electrical charge caused by lightning to the telephone receiver, singeing his hair and rupturing his eardrum.

The court of appeals reversed on all issues. We reverse that decision in part, because we do not agree with the court of appeals decision to order a new trial on the question of liability. In that respect, we would affirm the circuit court. We agree, however, that the trial court improperly decided the question of mitigation of damages as a matter of law. We conclude that the question was one of reasonableness under the circumstances, a question for the jury. Accordingly, we affirm the court of appeals in that respect and reverse the trial court.

We remand the cause to the circuit court for a retrial on the question of damages only.

To review the facts leading to this litigation:

On July 19, 1976, the plaintiff sustained a ruptured eardrum, with a resulting hearing loss, while talking on a telephone in his parents' home. The phone was installed and maintained by the defendant, General Telephone Company of Wisconsin. The plaintiff was treated for the injury by Doctors Ruben T. Aguas and Gurdon Hamilton. The doctors determined that the plaintiff sustained a traumatic tympanic membrane perforation of the left ear caused by a lightning-induced electrical charge. For the first four months after the injury, the doctors prescribed a conservative treatment of antibiotics and ear drops. On October 28, 1976, Dr. Aguas felt the tympanic membrane was not going to heal spontaneously and recommended the plaintiff have surgery on the left ear.

On November 24, 1976, Dr. Aguas performed a tympanoplasty of the left ear, which involved the grafting of a substitute membrane over the eardrum. Doctor Aguas last saw the plaintiff on June 27, 1977. The plaintiff's subsequent treating doctor, Dr. Richard L. Dobbs, first saw him on February 6, 1979, at which time the plaintiff complained of a hearing loss in the left ear since July of 1976 and of ringing in the ear. After examining the plaintiff, Dr. Dobbs concluded, to a reasonable degree of medical certainty, that the graft done in November of 1976 had lateralized, there was severe conductive hearing loss in the left ear, and there was a possibility of a cholesteatoma. A cholesteatoma is disquamated skin and tissue which collected behind the eardrum. It is a potentially threatening disease because, as it slowly enlarges, it erodes into the inner ear and may cause vertigo or deafness, or may erode the covering of the brain and cause a brain abscess, or may erode into the facial nerve canal and cause a facial paralysis.

On June 7, 1979, the plaintiff filed a complaint alleging the defendant was negligent in that the telephone system on the Lobermeier premises was inadequately grounded and that, while the plaintiff was using the telephone service, he suffered a severe shock of atmospheric electricity conducted by the telephone lines to the telephone handset into the left ear and through the eardrum, causing the plaintiff's injuries. In its answer of July 3, 1979, the defendant denied negligence in failing to ground adequately the telephone or to maintain adequately such telephone service and raised, as one of its affirmative defenses, that the plaintiff failed to mitigate his damages.

A jury trial commenced on September 16, 1981, and concluded on September 25, 1981. At the outset of the trial the defendant denied negligence; but on the third day of trial, the defendant admitted it was negligent in not properly grounding the telephone system at the Lobermeier residence in accordance with its own regulations and the requirements of the Wisconsin Administrative Code and the National Electrical Code. Consequently, the issue of liability that remained in dispute was whether the defendant's admitted negligence caused the injuries sustained by the plaintiff.

The theory under which the plaintiff proceeded at trial was that lightning struck the telephone company's transmission system and the electrical current traveled along the telephone wires until it came to an improperly grounded telephone, which allowed the electrical current to flow in the telephone earpiece, which in turn caused the plaintiff to suffer a ruptured eardrum. Thus, under the plaintiff's theory, the improper grounding of the telephone system caused the plaintiff's injury.

The defendant's theory was that lightning struck the Lobermeier's T.V. antenna, located on top of the house, and the electrical current flowed along the antenna wires to the television set, located in the living room, which resulted in a side-flash of electricity from the television set into the kitchen, to the receiver, and to the plaintiff's ear, a distance conceded to be over 20 feet. Under the defendant's theory, the improperly grounded telephone system was not a cause of the plaintiff's injuries, because the electricity from the lightning was transmitted by the television antenna and television set, not by the telephone line.

The plaintiff-respondent asserts in this court that the defendant telephone company waived any right on appeal to complain of any error or abuse of discretion in the course of the trial, because it had a mistrial "handed to it" as a matter of right when, on the fourth day of trial, one of the jurors became ill and, instead of taking a mistrial, waived a 12-person jury and elected to proceed with 11, when it could, without question, have terminated the trial at that point. Several errors asserted by the telephone company on appeal and on this review were committed prior to the juror's illness. To these errors, proper contemporaneous objection was made, and in respect to each of them a motion for mistrial was made and denied. When the problem of the absent juror was posed at the beginning of the fourth day of trial, the defendant agreed to waive the 12-person jury on the condition that the plaintiff waive his claim for punitive damages.

The law is clear that the event--the absence of a juror--was cause for a mistrial. The parties may stipulate, however, to go on with the trial with less than a numerically complete jury. State ex rel. Polk v. Johnson, 47 Wis.2d 207, 177 N.W.2d 122 (1970); Frion v. Craig, 274 Wis. 550, 554, 80 N.W.2d 808 (1957).

Having had, at this juncture, the absolute right to a mistrial, the telephone company, the plaintiff claims, obviously evidenced a willingness to rely on a favorable jury verdict and to forego any previous claims of error. This assertion of the plaintiff is not without logical foundation, for the entire basis of the mistrial-demand rule is predicated on the philosophy that a litigant "cannot have its cake and eat it too." In other words, if a litigant has raised a claim of error of so serious a nature that it may warrant a mistrial, the litigant must not only claim error but must demand the mistrial, for to fail to demand a mistrial is tantamount to an acknowledgment that the error is harmless, or at least it is not prejudicial to the degree that the aggrieved party is not willing to proceed on the assumption, or hope, there will be a favorable verdict despite the error.

The record indicates that the defendant and the plaintiff entered into a bargain at this point. The defendant agreed to waive its objection to the jury if the plaintiff waived its claim for punitive damages. Apparently, the plaintiff was anxious to proceed with the trial, for on the third day it had received an explicit concession that the telephone company was negligent in failing to ground the telephone line properly. Also it had been the recipient of numerous favorable rulings by the trial court in respect to further surgery, evidence of the consequences of improperly grounded telephone systems, and evidence of the "offer" of a scholarship.

It is thus rather apparent, because the "deal" was arguably beneficial to both parties, that the assumption was that the record was to be treated as protecting all the rights, benefits, and objections that had appeared or had been developed in the record to that time. It must be remembered that the plaintiff, too, could have asked for a mistrial, but chose not to, because it had, as is apparent from the record, made substantial progress in proving its case. Because of the expense to a plaintiff in bringing a new lawsuit following a mistrial, a demand made by a defendant can be accompanied by an agreement on conditions for a waiver that are economically coercive and unfair to a plaintiff. Here, however, both parties benefitted, or thought they stood to benefit, by proceeding in the absence of the 12th juror.

Moreover, their agreement was explicit, and upon the record the defendant stated:

"Your Honor, we are not waiving in reserving our rights to continue with our previous request for a mistrial on the basis of the previous rulings by ...