Phoenix Ins. Co. of Conn. v. Wisconsin Southern Gas Co.

• Decision Date: 03 February 1970
• Docket Number: Nos. 33,34,s. 33
• Parties: PHOENIX INSURANCE CO. OF CONNECTICUT, Plaintiff-Appellant, Frederick P. Worack et al., Plaintiffs, v. WISCONSIN SOUTHERN GAS CO., a corporation, Defendant-Respondent. Mark PELZ et al., Appellants, v. Frederick WORACK et al., Respondents.
• Court: Wisconsin Supreme Court

Page 610

173 N.W.2d 610

45 Wis.2d 471

PHOENIX INSURANCE CO. OF CONNECTICUT, Plaintiff-Appellant, Frederick P. Worack et al., Plaintiffs, v. WISCONSIN SOUTHERN GAS CO., a corporation, Defendant-Respondent.

Mark PELZ et al., Appellants, v. Frederick WORACK et al., Respondents.

Nos. 33, 34.

Supreme Court of Wisconsin.

Feb. 3, 1970.

Rehearing Denied March 31, 1970.

This case involves the appeal of judgments entered December 23, 1968, in two actions consolidated for trial, both arising out of a gas explosion which occurred November 14, 1965, at the Lakeview Motel in Twin Lakes, Wisconsin. One action is for property damage by plaintiffs Mr. and Mrs. Worack, owners of the motel, and their fire insurer, Phoenix Insurance Company of Connecticut. The insurer's action is based on a subrogation claim. The defendant in that action, Wisconsin Southern Gas Company, was the supplier of natural gas for the motel heating units.

The other is an action brought under the safe-place statute (sec. 101.06) and in ordinary negligence by Mark Pelz, a guest of the motel, for personal injuries suffered in the explosion and fire, and for loss of earnings. Mark is joined by his father as a plaintiff on a claim for medical expenses. Defendants in that action are the Woracks, owners of the motel, and Wisconsin Southern Gas Company (hereinafter gas company).

The Lakeview Motel, Twin Lakes, Wisconsin, was owned and operated by Mr. and Mrs. Frederick Worack. Their residence was immediately adjacent to the nine-unit motel and structurally attached thereto. On the evening of November 13, 1965, they rented a room, unit 7, to the plaintiff Mark Pelz, who was at the time nineteen years of age. After attending a wedding reception, Mr. Pelz returned to the motel about 1:45 a.m., November 14, 1965. The room was warm and he noticed no problem with respect to the heat or gas heater. Each unit of the motel was provided with an individual gas heater with its own pilot light. The heaters operated on natural gas provided by the defendant gas company.

At approximately eight a.m., November 14, 1965, defendant Mrs. Georgia Worack was awakened by a strange hissing noise. She woke up her husband and they discovered gas escaping from the kitchen stove. Mr. Worack turned on the stove and flames immediately began to burn in the air around the stove, shooting as high as two feet above the burners. He beat the flames out with a towel and shut off the supply of gas to the stove with a wrench.

While Mr. Worack was shutting off the stove, Mrs. Worack opened the windows upstairs to air out the house. She testified that she did not smell gas either when she discovered the leak at the stove or when she went upstairs to air out the house.

While Mrs. Worack was dressing the office doorbell rang and the man staying in unit 8 told her it was cold in his room. She then picked up some matches and accompanied him to unit 8. As they walked along the porch adjacent to the motel they met a man from unit 1 who complained there was no heat in his room, that he had heard a hissing noise about four a.m., and when he tried to light his heater flames were dancing around the valve. Mrs. Worack then turned off the gas supply in unit 1 and continued on to unit 8, which path took her past all the other units of the motel. When leaving unit 8 Mrs. Worack was met by the guest in unit 5, who also complained that his room was cold.

Realizing that something was wrong with the gas system in the motel, Mrs. Worack went to her residence to inform her husband that she was going across the street to contact Walter Hegner, an employee of the gas company. Without informing any of the other tenants of the gas problem she went across the street to Mr. Hegner's residence in an effort to seek assistance in resolving the problem with the leaking gas. While his wife was on her way to obtain help from Mr. Hegner, frederick Worack did not warn the other tenants of the gas problem. Before Mr. Hegner could respond to the knock at the door by Mrs. Worack the explosion occurred at 8:30 a.m.

The plaintiff, Mark Pelz, testified that he awoke about 8:15 a.m., November 14, 1965, and found his room very cold. He stated that he heard a hissing noise and thought it was the shower running in the next room. He sat on the side of his bed and lit a match intending to relight the space heater. The explosion knocked him to the floor, blew the windows and door out, and forced the front wall of the room out from its base. Pelz ran out of the room and toward the road, then turned around and ran into unit 5 where he jumped into the bed. Mrs. Worack observed the explosion from the porch of the Hegner house and stated that she saw Mark Pelz running along the porch of the motel screaming and on fire.

On direct examination Pelz described his immediate condition as follows:

'Q. How were you dressed?

'A. Just in my jockey shorts and a T shirt.

'Q. When you got to No. 5 you say you jumped into bed?

'A. Yes, I jumped in that man's bed.

'Q. And what did that man do, if anything?

'A. He tried to help me. We had to get out of there because the whole place was going to blow up. I couldn't move. I had a hard time even moving, he was helping me.

'Q. He helped you down there?

'A. He helped me outside and then down the walk toward the Worack home. He sat me down on the cement blocks there or the steps.

'Q. While you were sitting there, did you look at any part of your body?

'A. My hands were wrapped around in front of me, and my feet I couldn't see any of my nails or anything. It was just, skin was just bubbled all over, bubbled with this water or whatever it was coming out.

'Q. Apart from your hands and arms that you have described, did you notice anything with respect to your feet?

'A. They were the same way, just boiled.

'* * *

'Q. And what was the temperature then?

'A. It was cold out, it was a sunny day, but real cold.

'Q. What was the effect upon you sitting there?

'A. I was freezing.

'Q. What was the effect of the condition you saw on your feet?

'A. I had a hard time walking because everything I touched felt like I was walking on glass or something, just stung every time I took a step, it was just a stinging right through my feet. They tried to help me, but as soon as they put their hands on my back or my arm it hurt even more.

'Q. Did you notice anything with respect to your lip, your lips?

'A. Not at that time, no.

'Q. Did you feel anything with respect to them?

'A. I just, my voice, I could barely talk.

'Q. Could you speak up, Mark?

'A. I had a real hoarse throat. I couldn't talk very well, but my lips I didn't know anything was wrong with them.

'Q. When you were on the stretcher in the squad car, what did they attempt to do to you then?

'A. Well, they put me in the Rescue Squad first. I was on their stretcher, then they tried to put these buckles over you to hold you in the stretcher. I couldn't bend my legs down because it hurt too much when I straightened my legs out. They tried to pull them across, and it just hurt too much.'

Pelz was then transported to St. Catherine's Hospital in Kenosha where he continued to remain conscious until given pain medication in the emergency room. He was placed on a Striker Frame bed in the intensive care unit, which is a device built to facilitate frequent turning of patients without the necessity of attendants handling them. He stated that every time he was turned the skin would stick to the sheets and break open the blisters. Within two or three days after the fire the plaintiff lost his voice and was unable to use the hospital call button for two or three weeks because of the bandages on his hands.

Mrs. Pelz, Mark's mother, testified to his condition while hospitalized as follows:

'Q. How would you describe his condition, if any, the following day for appearance?

'A. The days--as one day led to another he got to look worse and worse because these burns that were on his face got redder and redder and finally black. We couldn't see his arms, of course, or his forearms or hands, but the rest of it was raw meat, looked like, and his eyes closed up with mucus and whatever that is, and his mouth he could barely open, and he looked like--awful.

'Q. Now, was there any change in Mark's condition other than this appearance that you have described during his progress in the hospital?

'A. Well, not for the first week or so, and then for a period of three or four days he was completely delirious or he didn't know what was going on.

'Q. Did you find him in this condition when you visited him?

'A. Yes, one afternoon I came in and he was lying there. He said, don't step on it, and there was nothing there, and he gave me stories of all sorts of shootings, and he imagined he was away from the hospital. He pleaded to be taken back to the hospital, and he kept saying there's a train, can't you get me off the train, and it was just ramblings. You couldn't make head or tail out of it.'

There was considerable testimony respecting personal injuries in addition to that just related, including color photographs and slides of the plaintiff taken while hospitalized.

There also was evidence educed from both the plaintiff, Mark Pelz, and a consulting plastic surgeon, Dr. Christopher Dix, regarding permanent injuries. The plaintiff displayed considerable scarring with sensitivity to extreme heat, cold and sunlight. Dr. Dix stated that plastic surgery would be helpful only to relieve skin tension and itching in the biceps area. He indicated that many of the lubricating glands of the skin had been destroyed and further that Mark Pelz had sustained first, second and third-degree burns. Dr. Walid Burhani, the first physician to treat the plaintiff, stated that 50 to 60 percent of the body had been affected by burns.

As to the explosion, it is conceded by all parties that the gas leakage was caused by the malfunctioning of the gas pressure regulator. The regulator was a Reynolds Series 8200 regulator,...