Ryan v. Zweck-Wollenberg Co.

• Decision Date: 04 May 1954
• Docket Number: ZWECK-WOLLENBERG
• Citation: 266 Wis. 630,64 N.W.2d 226
• Parties: RYAN, v.CO. et al.
• Court: Wisconsin Supreme Court

Page 226

64 N.W.2d 226

266 Wis. 630

RYAN, v. ZWECK-WOLLENBERG CO. et al.

Supreme Court of Wisconsin.

May 4, 1954.

Action by the plaintiff Ella Ryan to recover damages for personal injuries from the defendants Zweck-Wollenberg Company (hereinafter referred to as the 'dealer') and the Philco Corporation (hereinafter referred to as 'Philco') as the result of receiving an electric shock from an electric refrigerator.

The accident occurred about noon on March 6, 1952, in the home of Mr. and Mrs. John Zick, in the city of Beaver Dam. Plaintiff was the mother of Mrs. Zick, and had resided with the Zicks since the fall of 1951. Plaintiff paid no board or room but helped out with the housework. In the Zick kitchen an electric refrigerator and an electric stove were installed side by side along one wall, and plaintiff at the time of the accident was using the stove for cooking the noonday meal. While she had her left hand on the oven door she noticed that the refrigerator door was open and reached for the handle of such door to close it. When her right hand closed upon the refrigerator door handle she received a terrific electrical shock. The current passing through her body was so strong that her right hand was 'frozen' to the refrigerator door handle and her left hand to the oven door handle, and she was unable to release either. She was rendered momentarily unconscious and fell, causing the refrigerator to partly fall over against the stove. Mr. and Mrs. Zick were not at home at the time, but their small daughter was and she ran upstairs to the flat above to summon aid. Mrs. Hodgson, who resided in the flat above, heard a crash, and right after that the small daughter of the Zicks appeared at the door and said, 'Help Grandma'. Mrs. Hodgson then hurried down to the Zick flat and pulled the refrigerator plug from the electric outlet in which it was inserted to provide the electric current with which the refrigerator operated. The plaintiff was then able to release her hands from the handles of the refrigerator and stove.

The refrigerator had been manufactured by Philco and purchased by the Zicks from the defendant dealer in April, 1949. At that time the Zicks were residing at Fox Lake, while the dealer's place of business was in Beaver Dam. The dealer had purchased the refrigerator new through Radio Specialty Co., the Wisconsin distributor for Philco, and when received by the dealer it was still in the original shipping crate in which it had been shipped by Philco. One Schweiger, an employee of the dealer, testified that when he first saw the refrigerator 'it was in normal shape crated' and that he had uncrated it, plugged it in at the dealer's place of business to see if it operated properly, and then delivered it to the Zick's home at Fox Lake. At the Zick home he had installed it by merely plugging it into an electric outlet, and leveling the machine. About one week after the refrigerator had been installed, the Zicks noticed that the door did not shut properly and reported the same to the dealer. Schweiger then made a trip to the Zick home and reset the door handle so that the door closed properly, which he described as a very 'simple adjustment'. The testimony is undisputed that outside of this one adjustment to the door handle no other adjustments were made by anyone else to the refrigerator up to the time of the accident to the plaintiff.

However, about three weeks after the refrigerator was installed, Mrs. Zick noticed that when she was on her knees scrubbing the kitchen floor and got near the refrigerator she received a tickling or tingling sensation. The Zicks testified that this was reported to the dealer, while the dealer denied receiving such report. Mrs. Zick never experienced the tingling sensation when taking hold of the refrigerator door handle but only when near the bottom of the refrigerator on those occasions when she was scrubbing the floor. In December, 1951, the Zicks moved from Fox Lake to Beaver Dam to live, and engaged professional movers to move their furniture, including the refrigerator. After moving to Beaver Dam, Mrs. Zick experienced the same tingling sensation when mopping the floor about the refrigerator that she had experienced during the preceding two and one-half years while residing at Fox Lake.

On the same day of the accident, after it had occurred, the refrigerator was taken to the dealer's shop. There, one Schmidt, who for 16 years had been appliance service manager for Radio Specialty Co., the Wisconsin distributor of Philco, took 'the entire wiring harness' out of the refrigerator, which included all the wires which carried the current from one place to another except those in the 'sealed unit'. He then examined such wiring but could find no break in the insulation of any of such wires touching the metal surfaces of the box so that there was no defect in the wiring which could have caused a short circuit. However, the motor and compressor of the refrigerator were contained within a metal casing which is hermetically sealed, and this 'sealed unit' was not opened up, although Schmidt did make certain tests which were negative insofar as disclosing any short circuit. After making his examination of the wiring he reassembled the same, and put the refrigerator back into operation, but was unable to produce a short circuit.

The expert witnesses, Johnson and Huffman, who were called on behalf of plaintiff, testified that the electricity which caused the plaintiff's injuries definitely came from the refrigerator and not the stove because the stove was 'grounded', which would prevent any electricity therefrom passing through the body of a person coming in contact with it. Both testified that short circuits in electrical appliances can be intermittent.

There was no testimony by any witnesses who detected any defect in the refrigerator which would account for the short circuit which caused plaintiff's injury.

One Schnader, a research and development engineer who has been employed by Philco for 27 years, testified in detail as to the manufacturing and inspection processes employed by Philco in making and assembling its electrical refrigerators. The gist of such testimony was to negative the existence of any defect in the particular refrigerator when it was shipped by Philco because of the rigid tests to which all the refrigerators manufactured by it are first subjected to before shipment. Schnader also testified that he had made extensive tests on the refrigerator in question after the accident and could discover no short circuit nor any defect.

Plaintiff's action to recover her damages for her personal injuries was tried to the court and jury and a special verdict was submitted to the jury. The jury by its answers to the questions in the verdict found that at the time the refrigerator was shipped by Philco it contained a defect which made it imminently dangerous; that Philco should have known of that defect in the exercise of reasonable care; and that its failure in that respect was the cause of the plaintiff's injuries. It also found that the defect existed when the refrigerator was sold by the defendant dealer but that such defendant, in the exercise of ordinary care, should not have known of that defect. The jury further found that the plaintiff did not, and, in the exercise of ordinary care, could not have known of the existence of any imminently dangerous defect in the refrigerator.

Judgment was rendered upon the verdict in behalf of plaintiff against Philco for the recovery by plaintiff of $2,098.05 damages, together with costs and disbursements. From such judgment Philco has appealed. Judgment also was entered dismissing plaintiff's action as to the defendant dealer, but no appeal has been taken therefrom.

Quarles, Spence & Quarles, Milwaukee, Richard S. Gibbs, Milwaukee, of counsel, for appellant.

Hooker & Wagner, Waupun, for respondent.

CURRIE, Justice.

It is a definitely settled principle of law in this state that a manufacturer who places a manufactured article in trade and commerce not inherently, but because of its negligent construction, imminently dangerous to life and limb, is liable to one who sustains injuries by reason of such negligent construction. Flies v. Fox Bros. Buick Co., 1928, 196 Wis. 196, 207, 218 N.W. 855, 60 A.L.R. 357; and Marsh Wood Products Co. v. Babcock & Wilcox Co., 1932, 207 Wis. 209, 223, 240 N.W. 392.

In the recent case of Beadles v. Servel Inc., 1951, 344 Ill.App. 133, 100 N.E.2d 405, 410, plaintiff instituted action for personal injury as a result of being overcome by carbon monoxide gas which escaped from a secondhand gas-operated refrigerator, which had been manufactured by the defendant. The defendant manufacturer contended that refrigerators were not inherently dangerous articles and, therefore, in the absence of any privity of contract between the plaintiff and it, there could be no recovery. The Illinois court rejected such contention and held that the test to be applied, in determining whether a manufactured article was inherently dangerous, 'is the appliance as defectively made inherently dangerous when put to its intended use?' The conclusion reached was that the refrigerator in that case, if defective in the respect alleged by plaintiff, was inherently dangerous.

It is common knowledge that electric current of the voltage and amperage brought into homes by electric service wiring is sufficient not only to cause injury to persons coming in direct contact therewith, but sometimes also to kill. Therefore, any household electric appliance, such as a refrigerator, which is not grounded and becomes charged with electricity as the result of a short circuit, is inherently dangerous. If the short circuit has been due to negligent manufacture, the injured person is entitled to recover damages for such injuries against the manufacturer, provided such person has not been guilty of such a high degree of contributory...