Samson v. Riesing

• Decision Date: 18 March 1974
• Docket Number: No. 233,233
• Citation: 62 Wis.2d 698,215 N.W.2d 662
• Parties: , 14 UCC Rep.Serv. 618 Oscar SAMSON et al., Plaintiffs-Appellants, v. Audrey RIESING et al., Defendants-Respondents. Dorothy G. WOOD, Defendant and Third Party Plaintiff-Respondent, v. KOHLS FOOD STORES, INC., Third Party Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 662

215 N.W.2d 662

62 Wis.2d 698, 14 UCC Rep.Serv. 618

Oscar SAMSON et al., Plaintiffs-Appellants, v. Audrey RIESING et al., Defendants-Respondents.

Dorothy G. WOOD, Defendant and Third Party Plaintiff-Respondent, v. KOHLS FOOD STORES, INC., Third Party Defendant-Respondent.

No. 233.

Supreme Court of Wisconsin.

March 18, 1974.

Samson, Friebert, Sutton & Finerty, Robert E. Sutton, Milwaukee, for plaintiffs-appellants.

Ames, Riordan, Crivello & Sullivan, Donald H. Carlson, Milwaukee, for defendants-respondents.

HEFFERNAN, Justice.

This case was decided by granting the motions of the defendants for a directed verdict. The trial judge did not permit the case to go to the jury; and following the decision on the motions, the jury was dismissed and judgment entered. The plaintiffs argued that the trial judge's order not only violated this court's standards for resolving a case on a motion for summary judgment but also followed a procedure which does not have the approval of this court.

We have admonished trial judges that, where there is a motion for directed verdict, it is the better practice to reserve the ruling on the motion and submit the matter to the jury. In the recent case of Tombal v. Farmers Ins. Exchange (February 5, 1974), Wis., 214 N.W.2d 291, we again cautioned trial judges that, in close cases, the procedure of reserving the ruling until after verdict ought to be followed. We quoted with approval Flintrop v. Lefco (1971), 52 Wis.2d 244, 251, 190 N.W.2d 140, 144, where we said:

"'It is to be regretted that the circuit court did not reserve its ruling on the motion for directed verdict until after the jury had returned its special verdict. By so doing, even though the court after the return of the verdict did see fit to have granted the motion, there would now be no necessity of granting a new trial. We do not advocate that such procedure invariably be followed, but in close cases we deem it to be preferable.' Davis v Skille, supra, 12 Wis.2d 482, 490, 107 N.W.2d 458."

As in this case, the appellants in Tombal argued that the admonition set forth above mandated trial judges to follow those guidelines and in all cases to reserve rulings. We stress, however, that the guideline is an admonition only and is intended for application only in close cases. Where, as in this case, and as in Tombal, the trial judge after due consideration concludes that the case is not close, it is in the interest of judicial economy for a trial judge to rule immediately without letting the case go to the jury. There is substantial risk in deciding the motion for directed verdict immediately, for if this court reverses the judgment on the directed verdict, a remand for a jury trial becomes necessary and a whole new trial would usually be required. The decision to rule immediately, rather than to reserve a ruling, is a matter of judicial discretion, and we will not reverse merely because the trial judge did not follow the guidelines that are appropriate in a close case.

On appeal, the only question in respect to the directed verdict is whether the court erred in directing the verdict. The standards are the same whether the decision on the motion comes before or after a submission to the jury and whether the case was a close one or an easy one. The standard for determining whether the trial court erred in directing a verdict was stated in Zillmer v. Miglautsch (1967), 35 Wis.2d 691, 699, 151 N.W.2d 741, 745:

'(T)his court must take that view of the evidence which is most favorable to the party (the plaintiff in this case) against whom the verdict was sought to be directed . . .. If there is any evidence to sustain a defense or a cause of action, the case must be submitted to the jury. . . . The weight and sufficiency of the evidence is for the jury . . . as is the weight to be given to the witness' positive or negative testimony . . . Furthermore, it is basic that the credibility of the evidence and the inferences to be drawn therefrom are matters for the jury. . . . If there is any evidence other than mere conjecture or incredible evidence to support a contrary verdict, the case must go to the jury. . . . Incredible evidence is evidence in conflict with the uniform course of nature or with fully established or conceded facts. . . . (Citations omitted)'

Accordingly, in this case we must view the evidence most favorably to the plaintiffs; and if, under any possible theory of recovery, there is evidence to sustain the cause of action, the case must be submitted to the jury.

The plaintiffs' first cause of action is one for common law negligence, that the defendants failed to take reasonable care in the preparation of food which they knew was to be consumed by persons attending the luncheon.

The Restatement, 2 Torts 2d, p. 149, sec. 328A, capsulizes the burden on a plaintiff to prove a cause of negligence:

'In an action for negligence the plaintiff has the burden of proving

'(a) facts which give rise to a legal duty on the part of the defendant to conform to the standard of conduct established by law for the protection of the plaintiff,

'(b) failure of the defendant to conform to the standard of conduct,

'(c) that such failure is a legal cause of the harm suffered by the plaintiff, and

'(d) that the plaintiff has in fact suffered harm of a kind legally compensable by damages.'

In summary of the evidence which supports their position, plaintiffs state that it is undisputed that Pearl Samson contracted salmonella poisoning as the result of ingesting food which had been prepared by the defendants and purchased from them. Plaintiffs also point out that there was undisputed expert testimony that salmonella contamination would exist only if the turkeys were improperly cooked or the flesh contaminated by contact with salmonella bacteria after cooking. These facts, which are undisputed, the plaintiffs denominate as 'elementary negligence,' and they argue that, on the basis of this evidence, the verdict ought to have been directed for the plaintiffs. From the plaintiffs' statement of the facts supporting their position, it is apparent that they have abandoned any attempt to prove element (b) set forth in the Restatement. They acknowledge that there is no direct proof of the 'failure of the defendant to conform to the standard of conduct.' This means that the plaintiffs are relying upon some unnamed theory of circumstantial evidence to prove their case.

Negligence can be proved circumstantially. The general rule, however, as stated in Prosser, Torts (hornbook series, 4th ed.), p. 211, sec. 39, is 'that negligence must be proved, and never will be presumed.' Prosser explains that statement (pp. 211, 212) by saying:

'What is required is evidence, which means some form of proof; and it must be evidence from which reasonable men may conclude that, upon the whole, it is more likely that the event was caused by negligence than that it was not. As long as the conclusion is a matter of mere speculation or conjecture . . . it becomes the duty of the court to direct the jury that the burden of proof has not been sustained.'

Counsel for plaintiffs has attempted to assume the burden of proving circumstantially that someone was negligent. The facts stated in the plaintiffs' brief give rise to a reasonable inference that someone was negligent. That circumstantial proof, however, overlooks a crucial point, the sine qua non of liability, i.e., that a particular defendant failed to conform to the standard of conduct.

The type of circumstantial proof upon which the plaintiffs would rely has been denominated in Wisconsin law as res ipsa loquitur. The elements of res ipsa loquitur as applied by this court have been stated in Turtenwald v. Aetna Casualty & Surety Co. (1972), 55 Wis.2d 659, 665, 201 N.W.2d 1, 4:

'(1) The event or accident in question be of the kind which does not ordinarily occur in the absence of someone's negligence; and (2) the agency or instrumentality causing the harm must have been within the exclusive control of the defendant.'

Some of the elements of res ipsa have been proved. The evidence leads to the conclusion that salmonella would not exist in the turkey salad without someone's negligence, but exclusive control in any one of the defendants or in the defendants collectively, on a theory of vicarious liability, has not been shown either by proof or by inference. Prosser, supra, points out, p. 218, sec. 39:

'It is never enough for the plaintiff to prove merely that he has been injured by the negligence of someone unidentified. Even though there is beyond all possible doubt negligence in the air, it is still necessary to bring it home to the defendant.'

In this case nine turkeys were cooked, each by one of nine defendants, but not all of the 11 defendants cooked the turkeys. It does appear, however, that all of them participated in the preparation of the salad. Assuming that, at some stage of the preparation of one or more turkeys, one or more of the 11 ladies were negligent--either by providing inadequate cooking or inadequate refrigeration, or by permitting contamination from external sources--the negligence of any particular defendant remains completely a matter of speculation and conjecture. There was no exclusive control by any of the defendants. As Prosser, supra, stated, there is 'negligence in the air,' but it has not been laid at the doorstep of any defendant.

Even were we inferentially to narrow the negligence to the 11 defendants, the rule stated by Prosser is:

'(T)he plaintiff does not make out a preponderant case against either of two defendants by showing merley that he has been injured by the negligence of one or the other.' (P. 221)

The problems raised by the joinder of multiple defendants in negligence actions is discussed by McCoid, Negligence Actions Against Multiple Defendants, in 7 Stanford Law Rev. 480, 487 (1955). The plaintiff's dilemma in respect to the element of control is...