Payne v. Bilco Co., 74
| Decision Date | 28 March 1972 |
| Docket Number | No. 74,74 |
| Citation | 195 N.W.2d 641,54 Wis.2d 424 |
| Parties | Douglas PAYNE, Plaintiff-Appellant, v. The BILCO CO., a foreign Corporation, Defendant and Third Party Plaintiff-Respondent. J. M. Mitchell Products Company, Third Party Defendant. |
| Court | Wisconsin Supreme Court |
The plaintiff, Douglas Payne, was injured while at work on the premises of his employer, the Blackhawk Manufacturing Company, at West Allis, Wisconsin. Payne was the property supervisor of the building. He was responsible for the maintenance of the building and grounds, and his work included the moving of supplies in and out of the building. He commenced work on May 19, 1967. His basic salary was $500 a month. On November 8, 1967, his right arm near the wrist was injured when a large door fell upon it. At the time, he was in the process of opening the doors to bring a ladder from the basement to the outside.
The doors, which were manufactured by The Bilco Company, one of the defendants herein, were located on the south side of the building just beyond the exterior wall. They were mounted at an angle in the manner of the old-fashioned celler door. When both doors were fully opened, the entranceway was approximately 9 feet by 10 feet. The interior approach to the doors consisted of an angled ramp from the basement, upward, approximately six feet across. To the right of the ramp, as viewed from the interior, there were 20 concrete steps. These steps were approximately three feet wide. The doors were aluminum alloy, each approximately four and one-half feet wide and weighing 275 pounds. The hinges were spring-assisted to make it possible for the door to be opened from the inside by the effort of one man. Each door was equipped with a 'hold-open arm,' which was designed to lock the door in place when it was pushed to a vertical position. The 'hold-open arm' was a steel brace affixed to the door frame. By the use of a ratchet arrangement, a steel pin was engaged automatically when the door reached an angle 90 degrees from the horizontal. A chain was attached to the corners of the door to act as a guardrail when the doors were open.
On the day in question, Payne ascended the stairs, squatted down on the second or third step from the top, and proceeded to disengage the locking device located on the door to his right. The east door overlapped the west door and had to be opened first. Payne moved partially out onto the ramp to open the east door. He stated that, while in a squatting position, he pushed the east door open with his right hand. When he had the east door open a foot or two and the west door open an inch or two, he testified a strong wind caught the east door and blew it beyond the 90-degree position. He claims that it then rebounded, catching his right arm between the two doors. After the accident, he noticed that the springs were out of their containers and that the pin on the 'hold-open arm' had been sheared off.
Although the skin was not broken and there was no bleeding, there was immediate pain and swelling. The injury was originally diagnosed as a contusion and a sprain. Subsequently, on January 29, 1968, he was admitted to surgery, and a cartilage and a ligament were repaired. At this time, it was discovered that one of the bones in the right wrist had been fractured.
Although physical therapy improved the condition of the arm, pain and discomfort continued, and on May 1, 1968, a portion of the ulna was surgically removed. healing was satisfactory thereafter, and Payne was able to do light work by July of 1968. The medical witnesses agreed, however, that Payne had sustained some permanent disability to the right wrist. There was loss of strength and some atrophy was apparent.
Payne remained on the payroll until August 1, 1968, at which time his employment was terminated because he was unable to perform the duties of the job. It was stipulated by plaintiff's counsel that the 'time loss' would be limited to the period from March 10 to September 1, 1968.
At the time the building was constructed in 1966, the principal contractors was the Permanent Construction Company. The door in question was designed at the request of John E. Sommerville, the owner's architect, and was manufactured by The Bilco Company. The door was installed by a subcontractor, Skobis Company.
Payne originally brought his action only against Bilco and Permanent. Bilco cross-complained against Permanent and impleaded Sommerville as a third-party defendant. Subsequently, the court permitted Bilco to implead Skobis and J. M. Mitchell Products Co., a manufacture's representative handling Bilco's products in the Milwaukee area. Payne filed a third amended complaint, which reflected the additional parties to the lawsuit. However, on September 25, 1970, in consideration of the payment of $6,000, Payne entered into an agreement releasing Permanent, Sommerville, and Skobis. On October 14, 1970, prior to trial, the court ordered the dismissal of the actions against those three defendants. Although the court gave Payne an opportunity to amend his complaint to reflect the removal of those three defendants as parties to the action, Payne declined to do so. Trial commenced on December 15, 1970. At the close of testimony, although they had been dismissed as parties by the court's earlier order, plaintiff's counsel orally moved to dismiss Permanent, Sommerville, and Skobis. The motion was denied.
The record reveals that the requested instructions and the proposed special verdict were presented by Bilco. Although on oral argument in this court plaintiff's attorney stated that he had submitted photocopies of his own proposed instructions, the record fails to support this contention. Bilco's attorney denied that any request for instructions was separately made by Payne's counsel. The record shows that the instructions submitted were agreed upon by both counsel, and it also affirmatively shows that Payne's attorney approved the form of the special verdict.
The special verdict required the jury to apportion the negligence among Payne and six others. They were the Blackhawk Manufacturing Company, Panye's employer, who had never been made a party; the architect, Sommerville; the principal contractor, Permanent; the subcontractor, Skobis; the manufacturer's representative, Mitchell; and the fabricator of the door, Bilco. Although Permanent, Sommerville and Skobis had been dismissed as parties following their release, the court answered the special verdict question in regard to each of them, finding they were negligent and that their negligence was causal.
The jury returned a verdict which apportioned 40 percent of the negligence to Sommerville, 10 percent to Permanent, 15 percent to Skobis, 15 percent to Blackhawk, 0 percent to Bilco, 0 percent to Mitchell, and 20 percent to Payne. The jury found a wage loss of $500 and awarded personal injuries in the sum of $3,000.
On January 29, 1971, Payne's motions after verdict were denied; and pursuant to Bilco's motion, judgment was entered on February 8, 1971, dismissing the complaint. Although Mitchell was also dismissed, the appeal is taken only from the judgment dismissing Payne's complaint against Bilco.
Further facts are set forth in the opinion.
Charles M. Hanratty, Milwaukee (James A. Hanley, Milwaukee, of counsel), for appellant.
Kivett & Kasdorf, Milwaukee (John M. Swietlik, Milwaukee, of counsel), for respondent.
On this appeal, plaintiff contends that the trial court erred in refusing to allow him to amend his complaint to conform to the proof and to dismiss the action as to the defendants Permanent, Sommerville, and Skobis. It should be pointed out that plaintiff's oral motion to dismiss these three defendants was superfluous inasmuch as they had earlier been dismissed as parties by the court's order to October 14, 1970, after plaintiff had settled his claim with them and given a release.
Plaintiff also contends that he should have been permitted to amend his complaint to reflect the fact that those three defendants were not parties following the giving of the release. In respect to this contention, the record reveals that, at an earlier time, the plaintiff specifically declined to amend his complaint although the court had given him an opportunity to do so.
In any event, whether or not those three parties continued to be named in the complaint was immaterial, inasmuch as they were proper to be named in the special verdict for the purpose of the jury's apportionment of negligence. As an experienced lawyer, plaintiff's counsel on doubt realized, when it came time to frame the special verdict, that the jury would be likely to apportion a larger portion of the negligence to the three defendants who had already settled. Such apportionment would drastically curtail the plaintiff's chances of recovering from Bilco and Mitchell under the comparative-negligence law. Thus, it appears that what plaintiff's counsel really sought was the elimination of the three dismissed defendants from the special verdict. That position, however, is inconsistent with counsel's agreement of record that he approved of the special verdict in the form submitted to the jury. Blackhawk, plaintiff's employer, also was included in the special verdict although it never was a party to the action; and as to Blackhawk there could be no recovery by the plaintiff, since the record seems to indicate that workmen's compensation payments, an employee's exclusive remedy against an employer, had already been made.
Even as to those parties who had been dismissed, the plaintiff had no right to have them removed from that portion of the verdict which apportioned the negligence. Their inclusion in the special verdict was not error; and the deletion of Permanent, Sommerville, and Skobis and Blackhawk would have been prejudicial to the defendants Bilco and Mitchell.
In the case of Bielski v. Schulze (1962), 16 Wis.2d 1, 114 N.W.2d 105...
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