Rennick v. Fruehauf Corp.

• Decision Date: 05 April 1978
• Docket Number: No. 75-759,75-759
• Citation: 82 Wis.2d 793,264 N.W.2d 264
• Parties: James RENNICK, Plaintiff-Respondent, v. FRUEHAUF CORPORATION, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 264

264 N.W.2d 264

82 Wis.2d 793

James RENNICK, Plaintiff-Respondent, v. FRUEHAUF CORPORATION, Defendant-Appellant.

No. 75-759.

Supreme Court of Wisconsin.

Submitted on Briefs Feb. 8, 1978.

Decided April 5, 1978.

Wilcox & Wilcox, Eau Claire, submitted brief for defendant-appellant.

Doar, Drill, Norman & Bakke, New Richmond, submitted brief for plaintiff-respondent.

DAY, Justice.

This is an appeal from a judgment awarding damages in a products liability action arising out of a truck dumping accident. The plaintiff-respondent, James Rennick (hereafter plaintiff) owner and driver of the truck claimed damages for injuries received when the box of his dump truck tipped over during dumping operations. The plaintiff alleged that the accident was caused by defects in the load carrying and dumping apparatus. The truck was custom-built, assembled, installed, and later repaired by the defendant-appellant, Fruehauf Corp. (hereafter defendant) shortly before the accident. The defendant brought third-party actions against Valley Motor Co. Inc., Hyco Corp., and Schwartz Mfg. Co. These third-party defendants were granted motions for non-suit. No objection was made and no appeal was taken from these dismissals.

The jury found the defective condition of the truck was caused by defendant's negligence. The jury also found that the plaintiff was not negligent. The jury awarded the plaintiff $58,646.85 in damages. The trial court found the verdict excessive and gave the plaintiff the option of accepting a verdict of $41,146.85 or in the alternative, a new trial on the issue of damages. The plaintiff accepted the lower figure. Defendant appealed from the judgment and plaintiff has cross-appealed from the court's reduction of damages.

The issues on appeal are: (1) Should the plaintiff have been allowed to use a res ipsa loquitur inference to prove a defect in the truck? (2) Did the trial court err by granting the third-party defendants' motion for non-suit? (3) Are the plaintiff's emotional distress damages compensable? (4) Did the trial court abuse its discretion in reducing the jury's damage award? (5) Is the defendant entitled to a reduction in the plaintiff's recovery because of alleged compensation from plaintiff's disability insurance? (6) Did the trial court err in refusing to set aside the verdict or grant a new trial for alleged errors in evidentiary rulings?

The plaintiff had combined a small trucking business with a cattle-feeding and vegetable farming operation from the 1940's to the summer of 1971, gradually increasing the amount of time he spent trucking. In October, 1971 the plaintiff ordered a new eighteen ton truck with a heavy-duty hoist and an open, tarpaulin-covered aluminum box from third-party defendant, Valley Motor Co. An order was placed by Valley Motor Co. with defendant to custom-build and install the load-carrying and dumping apparatus of the truck. The day after the truck was delivered the plaintiff picked up a load of eighteen tons of corn silage for delivery to a farmer in Cameron, Wisconsin. When the plaintiff attempted to dump the load at the farm the box rose unevenly for about fifteen inches, the left side of the box dropped, and the end of the left side of the twin telescopic hoist broke off.

The next morning the plaintiff took the truck to the defendant for repair. Defendant replaced the broken cylinder, but had trouble correcting jerkiness in the lifting of the hoist. One side of the box would go up faster than the other. Defendant made a number of tests and experiments in an attempt to correct the lifting problem. Defendant installed a flow equalizing valve, and tested the hoist by lifting the load about three feet, at which time the box lifted evenly. The box was almost fully loaded with silage so the defendant did not test the hoist by raising the box completely, although the load could have been dumped in the defendant's lot. An employee of defendant told plaintiff to go dump the truck and bring it back the next day so that the truck box could be reinforced to correct a minor deflection (a 3/16 downward bend in the box).

Plaintiff then drove his truck about forty miles to a farm to unload the silage. Plaintiff positioned the truck on level ground and began to operate the hoist. When the load got up to the second lifting stage, it suddenly dropped on the left side, and then tipped over. The cab did not overturn, but the movement of the cab caused the plaintiff to fall toward the passenger side of the truck. The plaintiff did not get out of the truck immediately and when he did get out he was "white and shaking," "numb," "shook up" and "did not talk right."

Five hours later the plaintiff was taken to the hospital, and was treated for pain in the shoulder and neck, multiple internal bruises, generalized trembling, and an acute anxiety reaction. The plaintiff remained in the hospital overnight, but his symptoms continued and about two weeks later he was re-hospitalized for a period of eight days and was diagnosed and treated for chronic anxiety reaction and a sprained back and neck.

Plaintiff claimed at trial that as a result of the accident he still has chronic permanent dizziness, tiredness, nervousness, headaches, and his right hand trembles. He claimed he was permanently disabled from engaging in his long-term occupation as a trucker. Plaintiff was sixty years old at the time of the trial in April, 1975.

Res Ipsa Loquitur.

The defendant contends that the trial court should have granted its motion for directed verdict and for judgment notwithstanding the verdict because the plaintiff failed to prove that the accident was caused by a defective condition of the truck. There was no evidence of a specific defect, but the plaintiff relied on a res ipsa loquitur inference from the fact that non-defective dump trucks do not tip over when properly operated. The jury was instructed on the res ipsa loquitur theory. The defendant specifically challenges the instruction and argues that the facts of this case do not allow the drawing of a res ipsa inference.

For the plaintiff to prevail on a products liability claim he must show, among other things, that the product was in a defective condition when it left the possession or control of the seller. Dippel v. Sciano, 37 Wis.2d 443, 459, 460, 155 N.W.2d 55 (1967). The existence of the defect may be shown by a res ipsa type of inference. Jagmin v. Simonds Abrasive Co., 61 Wis.2d 60, 73, 211 N.W.2d 810 (1973).

"The procedural effect of res ipsa loquitur in Wisconsin is that of a permissible inference rather than rebuttable presumption. (citations omitted). As a permissible inference, the effect of the doctrine of res ipsa loquitur is merely to permit the jury to draw a reasonable inference from circumstantial evidence." Fehrman v. Smirl, 20 Wis.2d 1, 21, 121 N.W.2d 255, 266, 122 N.W.2d 439 (1963).

In applying the res ipsa inference to products liability cases a defect in a product can not be presumed from the occurrence of an unexplained event, but,

". . . when the unexplained event is combined with evidence rebutting the existence of other probable causes, such evidence (is) sufficient to warrant a jury finding a defect." Powers v. Hunt-Wesson Foods, Inc., 64 Wis.2d 532, 540, 219 N.W.2d 393, 396 (1974).

"Thus a res ipsa type of inference is enough to establish a defect if the plaintiff can show that he was properly using the product and can negative other possible causes of the product failure since it left the manufacturer's control. Prosser has said that:

" '. . . He (plaintiff) need not negative entirely the possibility that the defendant's conduct was not a cause, and it is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not.' (footnote omitted).

". . . the burden is on the plaintiffs to prove the product defective but not beyond a reasonable doubt. The plaintiffs only have to introduce evidence which affords a reasonable basis for the conclusion that it was more likely than not that conduct of the defendant manufacturer was a substantial factor in the injury." Jagmin, at 61 Wis.2d 73, 74, 211 N.W.2d 817.

In this case the defendant contends that it was inappropriate to allow the jury to draw a res ipsa inference because there was also expert testimony that the tipping of the truck could have been caused by the silage freezing or being loaded unevenly. The testimony showed that the silage was moist when it was loaded on the truck on January 18, 1972. When the plaintiff attempted to unload the truck at Cameron that day, the dumping apparatus malfunctioned, but he did unload one ton of silage by hand. The silage was unloaded evenly, from side to side, out of the back of the truck. At that time the silage was not frozen or sticking to the walls of the truck.

On the night of January 18th, the plaintiff left the truck in his unheated shed overnight. The temperature that night might have been as low as fifteen degrees below zero.

The plaintiff arrived with his truck at the defendant's shop at 8:00 a. m. the next day. The truck remained in defendant's garage from 8:00 a. m., January 19th until 4:00., January 20th. The shop was heated to fifty-five to sixty degrees during the day and to some temperature above freezing at night. The defendant tested the dumping apparatus and one of defendant's employes told the plaintiff to go dump the silage and then return to defendant's shop.

The plaintiff then drove the truck seventy to ninety minutes in temperatures of six to nine degrees to the location of the accident. The plaintiff opened the doors to unload the silage before the accident. The silage did not appear frozen, and was evenly loaded from side to side. When the doors were opened steam rose from the silage inside the truck. After the truck box tipped over, the passenger side of the back of the truck was quite bare of...