Nelson v. L. & J. Press Corp.

• Decision Date: 02 December 1974
• Docket Number: No. 313,313
• Citation: 65 Wis.2d 770,223 N.W.2d 607
• Parties: Charles NELSON, Plaintiff, v. L. & J. PRESS CORP., Defendant-Third Party Plaintiff-Respondent, BARG ELECTRIC CO., and Velvac, Inc., Third-Party-Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 607

223 N.W.2d 607

65 Wis.2d 770

Charles NELSON, Plaintiff, v. L. & J. PRESS CORP., Defendant-Third Party Plaintiff-Respondent BARG ELECTRIC CO., and Velvac, Inc. Third-Party-Defendants-Appellants.

No. 313.

Supreme Court of Wisconsin.

Dec. 2, 1974.

As Modified on Denial of Rehearing Feb. 4, 1975.

C. Donald Straub, Milwaukee, for Velvac, Inc.

Kluwin, Dunphy, Hankin & McNulty, Milwaukee, for Barg Electric Co.

Prosser, Wiedabach, Lane & Quale, Milwaukee, for L. & J. Press Corp.

ROBERT W. HANSEN, Justice.

What caused the punch press to repeat, when set for the 'once' operation, and who was responsible for its so doing?

Was the continuous operation of the punch press caused by plaintiff's operation of the foot pedal? The jury rejected this conclusion as to what happened. It found no contributory negligence on the part of the plaintiff. That conclusion is supported by evidence that the plaintiff operator was using the foot control at the time of the accident and that the machine was set for the 'once' operation and should not have repeated unless the foot control was released and pressed again. Five minutes after the accident, the plaintiff stated, 'I'm sorry, it repeated three times.' This statement, testified to by two witnesses at the scene, was properly admitted into evidence under the excited utterance exceptance to the hearsay rule. ¹ This statement supports the inference that plaintiff was properly operating the machine, did not press the foot pedal for a repeat operation, and that the machine malfunctioned.

Why did the punch press malfunction by repeating when it was set for a 'once' operation? If the plaintiff did not press the pedal for a repeat operation, the punch press itself must have malfunctioned. But why and how? A Velvac employee, when the press malfunctioned again during a testing operation after the accident, opened the control box and found and removed a piece of wire and a piece of solder from between two terminals. An insurance claims representative, investigating the accident, observed scraps of solder and insulation in the control box. An electrical engineer, called as an expert witness by L. & J. Press, testified, in answer to a hypothetical question, ² that, in his opinion, the press was caused to repeat when the piece of stranded wire fell and shorted two terminals which served the same function as the foot switch. As the trial court noted in its opinion, when the piece of wire and the piece of solder were removed from between the terminals, the press again worked without malfunction. However, locating an entirely reasonable explanation of what caused the malfunction does not determine who was responsible for the presence of the debris in the control box.

Was the manufacturer or the modifier of the punch press, either or both, responsible for the presence of the debris in the control box? The jury found negligence on the part of L. & J. Press, the manufacturer, and Barg, the modifier--10% on the part of the manufacturer, and 80% on the part of the modifier. We deal here with the piece of solder and the piece of stranded wire found in the control box lodged between the two terminals. Solder was used by Schaum Electric in assembling the control box, and was not used by Barg in modifying the controls. The manufacturer used stranded wire; the modifier used solid wire. However, the employee of the contractor, Barg, who did the actual modifying, testified that he did disconnect some of the stranded wires, and insulation had been stripped from the original stranded wires in the control box. The trial court held that the jury could find the manufacturer, L. & J. Press, causally negligent '. . . in the design of the control panel, and the proximity of exposed wires and connections between which an electrical connection could be made by a piece of wire of the size of that which is a part of Exhibit 12.' We agree that it could. The trial court found that the jury could find the modifier, Barg Electric, causally negligent '. . . in the method and manner in which it changed the machine,' and '. . . in not cleaning out the box, and that the piece of wire was left there by it.' We agree that it could. We agree as well that the jury was entitled to find that the modifier, Barg, was primarily at fault in causing plaintiff's injury. Appellant Barg's contention that the verdict here was based on conjecture is rejected, there being sufficient evidence here to sustain the verdict. ³

Appellant Barg Electric also argues that it is entitled to judgment notwithstanding the verdict since any liability on its part would shift, it being an independent contractor, to Velvac upon acceptance and payment for its work. ⁴ Where the defect in work done is not readily observable upon reasonable inspection, the rule does not apply. ⁵ As to the work done within a subsequently sealed and airtight electric control box, we do not see payment for the work as having any such consequence here. This observation leads directly to the question of whether there was such duty to inspect and discover on the part of Velvac in this case under these facts.

Was there a breach of any duty owed by Velvac, the purchaser and operator of the punch press, to the plaintiff? We need, initially, to determine the status of the plaintiff, the person injured when the punch press malfunctioned. Appellant Velvac claims plaintiff was a loaned employee at the time of injury and thus limited to workmen's compensation recovery. The trial court held that he was not a loaned employee. We agree. Under the four-element test applicable, ⁶ the required element of actual or implied consent on the part of the plaintiff to work for the special employer is here completely absent. ⁷ Plaintiff was sent to work for Velvac by his employer, Labor Pool, under a work order that provided that it was understood and agreed that plaintiff was an employee of Labor Pool, and would not be employed by Velvac for ninety days. There is nothing to indicate that plaintiff consented to a new employment relationship with Velvac. ⁸ His legal status is that of an invitee, a business invitee, on the premises of Velvac.

The duty devolving upon Velvac here was a duty to use reasonable care in discovering a defect or danger inside the electric control box and, under these circumstances, a correlative duty to warn the plaintiff of it or take steps to correct it. ⁹ As master or invitor, Velvac here would be liable for the consequences of any defects 'of which he knew, or which he might have discovered by reasonable inspection.' ¹⁰ However, notice, actual or constructive, is required to trigger the duty involved. ¹¹ There is here no claim of any actual notice of defect up to the moment when the punch press malfunctioned, causing the injury to plaintiff. The claim of negligence or breach of duty owed must rest upon constructive notice by the ten months elapsing between installation and injury. ¹² That is what the trial court here held, saying of the ten-month time span, '. . . During all that time, Velvac did not open the panel box, among other things, to see how the work was done.' On this record, given this piece and type of equipment, under the 'reasonable person' test, can it be said that the ten-month time span constituted constructive notice of a possible defect or danger within the sealed electrical control box?

Here the evidence establishes that Velvac did two things: (1) They bought a punch press from L. & J. Press; and (2) after it was installed, they engaged a competent electrical contractor, Barg Electric, to add two additional palm button switches. Both after the installation and after the modification, the electric control box, attached to the punch press, was sealed so as to keep it airtight. After either installation or modification by competent electrical contractors, would a reasonable person open the seal and uncover the complicated electrical control panel to make sure that no debris had been left in the box? Granted that the risk was not known or apparent, can it be said that a reasonable person would open the sealed control box to determine if risks, not known or apparent, therein existed? ¹³ The nature of the equipment involved, and the sealed nature of the control box involved, make unreasonable such expectation. Does the passage of ten months' time, during which the punch press and its attached control box worked perfectly, with no malfunction and no nonfunction, change the situation so as to create a constructive notice of concealed defect? We have here no situation where opening the sealed control box to check for wear and tear or to make adjustments was indicated or appropriate. The machine, and its attached control mechanism, functioned properly and without the slightest deviation from the normal ten months. At the end of ten months, or at any time between, can such entirely reassuring performance give constructive notice of the possibility of defect or danger being present in the control box? To a reasonable person, would not such continued functioning without difficulty be reassuring, rather than alerting to the possibility of concealed defect or hidden danger? Given the complicated nature of this piece of equipment, the sealing of the electric control box to render it airtight, the completely satisfactory functioning of the punch press and its electrical control system from the time of installation to the time of injury, there is no reason whatsoever for a reasonable person to open the control box to check its contents for pieces of wire or solder. We find in this record, and in this situation, no basis for holding that ten months of entirely proper functioning gives notice, actual or constructive, of a defective or dangerous condition existing within the control box. Under these facts, we find, as a matter of law, no duty or responsibility on the part of defendant Velvac to have opened the seal and uncovered the control box...