Piorkowski v. Liberty Mut. Ins. Co.

• Decision Date: 06 May 1975
• Docket Number: No. 332,332
• Citation: 68 Wis.2d 455,228 N.W.2d 695
• Parties: Geraldine PIORKOWSKI et al., Respondents, v. LIBERTY MUTUAL INSURANCE CO. et al., Appellants.
• Court: Wisconsin Supreme Court

Page 695

228 N.W.2d 695

68 Wis.2d 455

Geraldine PIORKOWSKI et al., Respondents, v. LIBERTY MUTUAL INSURANCE CO. et al., Appellants.

No. 332.

Supreme Court of Wisconsin.

May 6, 1975.

Plaintiffs-respondents, Geraldine Piorkowski and her two children, Shirley (age 18) and Victor (age 11), commenced this action on October 22, 1971, suing defendants-respondents, Liberty Mutual Insurance Company, as insurer, and Tomaro Contractors, Inc., for loss of a well and for 'inconvenience' and 'humiliation' suffered as a result of being without a well or water supply for several months. The plaintiffs' complaint alleged that, as a result of blasting operations by the defendant contractor in cutting a sewerage tunnel, the well on the Piorkowski property became inoperative.

The jury returned a verdict on March 26, 1973, finding that the dynamiting operations of the defendant contractor caused the damage to the well involved. Plaintiff Geraldine Piorkowski was awarded $1,179 (answered by the court) for property damages. The jury awarded damages for 'inconvenience, humiliation and emotional strain' as follows: $5,500 to plaintiff Geraldine Piorkowski; $2,500 to plaintiff Shirley Piorkowski; and $800 to plaintiff Victor Piorkowski. Following post-trial motions, judgment was entered on the verdict. Defendants appeal.

Otjen, Phillip & McFadyen, Milwaukee, for appellants.

Hersh & Stupar, S. C., by Jeffrey S. Schuster, Milwaukee, for respondents.

ROBERT W. HANSEN, Justice.

Three claims of trial court error are made on appeal and each will be dealt with individually and in turn.

DENIAL OF NONSUIT.

At the close of plaintiffs' case-in-chief, defendants' motion for nonsuit was denied. At the end of the taking of testimony, the motion for nonsuit was renewed and again denied, as was defendants' motion for directed verdict.

The denial of defendants' motion for nonsuit at the close of plaintiffs' case-in-chief was error. Plaintiffs were required to link causally the dynamiting operation nearby with their well becoming unusable. This they sought to do by coupling a description of the specific blasting operation conducted by defendant with the well becoming inoperative. The civil engineer for the county sewerage commission testified that in one shaft the defendant contractor detonated approximately 28 blasts per day, using an average of 75 pounds of dynamite per blast, and that in the other shaft the defendant detonated 15 blasts during the month involved, using approximately 120 pounds of dynamite per blast. An employee of defendant contractor explained that there were milliseconds of 'delay' between detonations, testifying that approximately 45 pounds of dynamite were used in a pattern and '. . . roughly from 10 to 12 pound per delay.'

To link blasting and well damage, three hypothetical questions were put to the university professor, an expert on civil engineering, who testified for the plaintiff. None related to a situation where 10 to 12 pounds of dynamite were used per delay. The first and third questions assumed a situation where 45 pounds of dynamite were used per delay. The second hypothetical question asked assumed a situation where 75 pounds of dynamite were used per delay. On cross-examination the professor reaffirmed that his affirmative answers as to causation on the hypothetical questions asked were based on assumptions of 45 pounds and 75 pounds of dynamite being used per delay. He further testified that 16 pounds of dynamite per delay would be safe at a distance of 200 feet, the distance between well and blasting here involved.

Plaintiffs' counsel suggests three ways in which the evident gap between the fact situation as to dynamite per delay and the facts assumed in the hypotheticals can be abridged: (1) That a reasonable inference can be drawn from the deposition testimony of an employee of defendant contractor to find that 45 pounds of dynamite were in fact used per delay in the tunnel blasting. But that employee testified that 45 pounds of dynamite were used 'for the whole job,' meaning 'one complete round' or 'one complete shot.' No basis exists for inferring he meant 45 pounds per delay. (2) That defendant contractor's superintendent confirmed in his testimony that the civil engineer stated that 75 pounds of dynamite per delay were used. One witness' misstatement that another witness testified to a certain fact does not establish such fact nor change the testimony as given by such other witness. (3) That the defendant contractor's superintendent could not or would not give an answer when asked why the blasting was performed 200 feet from plaintiffs' well while the magazine for storage of explosives must be kept at least 500 feet away from the blasting. Such question was several times asked with the superintendent stating that he did not understand the question. Failure to answer a question does not here establish a basis for inferring that the blasting was conducted too close to the well--much less does it establish that either 45 pounds or 75 pounds of dynamite were here used per delay.

With the gap between the facts and the assumptions in the three hypothetical questions left unbridged at the close of plaintiffs' case, it follows that, at the close of plaintiffs' case-in-chief, there was insufficient credible evidence and no inferences which might reasonably be drawn therefrom to support plaintiffs' claim to cause of action. (See: Liebmann v. Busalacchi (1971), 52 Wis.2d 692, 695, 191 N.W.2d 31. See also: Trogun v. Fruchtman (1973), 58 Wis.2d 569, 585, 207 N.W.2d 297.) Defendants' motion for nonsuit should have been granted. However, every trial court error is not reversible error. Sec. 274.37, Stats., provides: 'No judgment shall be reversed or set aside or new trial granted in any action or proceeding, civil or criminal . . . as to any matter of pleading or procedure, unless in the opinion of the court to which the application is made, after an examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure the new trial.' Applying this statute as to reversibility of error, the motion for nonsuit at the end of plaintiffs' case-in-chief stands in no different position than the same motion renewed at the end of the taking of testimony, for it is to the entire record that we are to direct our attention upon review.

In the record before us it is clear that, when called as a rebuttal witness, the professor who had answered the three hypothetical questions did two things: (1) He clarified or explained his earlier use of the word 'delay' by testifying that '. . . four individuals shots, what was called by the other witness as delays are not--cannot be considered as delays but one delay only, I mean four shots at--present one delay only, which means that the poundage, the total amount of explosive that results in the vibration effect is much higher than the figure given for one delay,' and (2) he testified, on redirect examination, as follows:

'Q Professor, if there was a twelve pound delay at a distance of two hundred feet with a time interval between delays of one millisecond, what, if any, damage would be done to the well?

'A Most probably, serious damage.'

Our examination of the entire record leads to the conclusion that this is the only testimony, given late in the trial, that links the established use of 12 pounds of dynamite in a series of blasts, two hundred feet away, with damage to plaintiffs' well. However, it was here sufficient to take the case to the jury and to warrant the jury finding that the dynamiting, two hundred feet away, using 10 to 12 pounds of dynamite per delay, did damage plaintiffs' well. It follows that it was not error for the trial court to deny defendants' motions for nonsuit and directed verdict at the end of the taking of testimony, and under sec. 274.27, Stats., not reversible error to have denied defendants' motion for nonsuit made at the end of plaintiffs' case-in-chief.

BASIS FOR HYPOTHETICAL QUESTIONS.

Defendants' second claim of error is that the trial court permitted the professor to answer the three hypothetical questions, assuming the use of either 45 pounds or 75 pounds of dynamite per delay in the blasting, when there were no facts in evidence that either 45 pounds or 75 pounds of dynamite per delay had been used. In this state a trial court '. . . must be in a position to insist upon a proper foundation being laid before it allows the (hypothetical) question to be answered.' (Kreyer v. Farmers' Co-operative Lumber Co. (1962), 18 Wis.2d 67, 81, 117 N.W.2d 646, 655.) However, the eliciting of an opinion from an expert witness no longer need be by way of the hypothetical question approach. Counsel may use a hypothetical question, but is not forced to do so, although the trial court may in its discretion '. . . insist that a hypothesis be used.' (Rabata v. Dohner (1969), 45 Wis.2d 111, 134, 172 N.W.2d 409, 420.) Where the hypothetical question is used, the trial court is to separate premises from conclusions but is to ". . . wait till the end of the trial and all the evidence on both sides is in, before it determines what premises...