Savina v. Milwaukee Gas Light Co.

CourtUnited States State Supreme Court of Wisconsin
Citation154 N.W.2d 237,36 Wis.2d 694
PartiesDonald SAVINA, Plaintiff-Appellant, v. MILWAUKEE GAS LIGHT COMPANY, a domestic corporation, now known as Wisconsin Gas Company et al., Defendant-Respondents, Barber-Colman Company et al., Impleaded Defendant-Respondents.
Decision Date28 November 1967

Stephen R. Miller, Milwaukee, for appellant, Kersten & McKinnon, Kenan J. Kersten, Milwaukee, of counsel.

Harrold J. McComas, Timothy R. Casgar and Foley, Sammond & Lardner, Milwaukee, for Wisconsin Gas Co.

Wells & Boyle, Howard H. Boyle, Jr., Beaver Dam, for respondents Pyromatic Industrials, Inc. and Maurice A. Embertson.

Kivett & Kasdorf, Milwaukee, for respondents James Williams and Industrial Tempeature Controls, Inc., James P. Reardon, Milwaukee, of counsel.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, for impleaded defendant-respondent Barber Colman Co., Kurt H. Frauen and Thomas N. Klug, Milwaukee, of counsel.

Ames, Riordan, Crivello & Sullivan, Milwaukee, for impleaded defendant-respondent Midland Ross Corp.

HALLOWS, Justice.

The gas-fired oven, an appliance about 7 feet high, 6 feet wide and 10 feet long, was used to dry tool housings which are spray painted in the same room. On top of the oven is located the complicated burner apparatus with various electronic or electrically motivated valves and safety controls and motors. Air is heated by the burner and then blown into the oven to dry the housings. The explosion took place in the oven as plaintiff was pushing a rack of tool housings into the oven on October 2, 1962. Early in the morning the plaintiff and several workers had smelled gas around the oven. The plaintiff had used the oven about an hour and a half before the explosion occurred and this was the ninth rack of housings put in the oven that morning but the first after the plaintiff had taken a work break of about a half hour duration.

In the plaintiff's theory of the case there was a leak in the house pipes and the air blowers carried the gas into the oven or there was a leak within the oven in its controls, burner or valves, but in either event the gas company was liable because it had negligently inspected the piping leading to the oven and had failed to inspect the oven some months before the explosion. The gas company contended the explosion was caused by paint solvent or benzene and not by natural gas, and in addition its responsibility for inspection for leaks did not include an industrial or commercial appliance.

There was evidence that some four to six months before the explosion the gas company was called on a complaint that there was a gas leakage in the spraying and drying room. A liquid-soap test was performed by the gas company on the house pipes leading to the oven but no leak was found and no smell of gas was then detected. The employee of the gas company had an explosimeter but did not use it. There is a dispute in the evidence whether the gas company was again called to inspect for gas leaks. The record also discloses that other defendants had performed work on the various safety controls of the oven and the burner, that the dryer was in poor mechanical condition and that the employer had been advised to have the burner of the dryer rebuilt. On one of the service calls the lighting procedure had been changed.

After the explosion a fuzz leak in a pipe some 15 to 20 feet from the oven was discovered. This allowed less than one-fourth cubic foot of gas to escape per hour but there was no evidence this leak existed prior to the explosion. There is testimony by workmen that they smelled gas intermittently over a period of time prior to the explosion and on the morning the explosion.

The jury was asked whether the explosion was caused by natural gas, whether there was a gas-pipe leakage near the drying oven and if so, whether such leakage had existed for a period of four to six months before the explosition, whether the gas company was negligent in not detecting such leakage of gas and whether such leakage was a cause of the explosion. In effect the instructions to the jury restricted the liability of the gas company to the inspection of the gas pipes leading to the oven and excluded the duty to inspect for any leakage of gas in the controls, burner or in the oven itself. The jury found the explosion was caused by natural gas but there was no leakage in the gas pipes near the drying oven.

The plaintiff now complains the form of the verdict question limiting the liability of the gas company to a leak in the pipes and the related limiting instructions were erroneous because the gas company under Weber v. Interstate Light and Power Co. (1955), 268 Wis. 479, 68 N.W.2d 39, had a duty to inspect not only the piping but also the industrial gas-fired drying oven.

These issues cannot be raised as a matter of right as there was no timely objection either to the form of the verdict or to the insufficiency of the instruction and no additional instruction was requested of the court. An objection to the form of a verdict must be made promptly. If counsel knows the form of the verdict prior to the verdict's submission to the jury, he should then object; if no such opportunity is afforded counsel, objection to the form of the verdict should be made before the jury returns its verdict. A party cannot take his chance with the jury and object only if he loses. Nimits v. Motor Transport Co. (1948), 253 Wis. 362, 34 N.W.2d 116; Johnson v. Sipe (1953), 263 Wis. 191, 56 N.W.2d 852; Martin v. Outboard Marine Corp. (1962), 15 Wis.2d 452, 113 N.W.2d 135. The objection here is not to the validity of the verdict as was the case in Vroman v. Kempke (1967), 34 Wis.2d 680, 150 N.W.2d 423, where the verdict was void and did not constitute a verdict and thus could not stand whether objected to or not.

An objection to the instructions for inadequacy or insufficiency must also be made at least prior to the return of the verdict. Generally, counsel should timely submit his requested instructions, but if this is not done and the instructions given are not erroneous as a misstatement of the law but are incomplete, it is the duty of counsel to object at the time the instruction is given. Carson v. Pape (1961), 15 Wis.2d 300, 112 N.W.2d 693; Grinley v. Town of Eau Galle (1956), 274 Wis. 177, 79 N.W.2d 797. Absent proper objections by the plaintiff, these alleged errors in the verdict and the instructions are not before us.

However, the plaintiff argues the instructions were erroneous in misstating the law on the burden of proof and such error was preserved by being used as a ground for a motion for a new trial. Deaton v. Unit Crane and Shovel Corp. (1953), 265 Wis. 349, 61 N.W.2d 552; Reuling v. Chicago, St. P., M. & O.R. Co. (1950), 257 Wis. 485, 44 N.W.2d 253. We consider this assignment of error properly raised. It is true the trial judge instructed the jury in respect to question 2 that if it was uncertain from the evidence whether or not there was a leakage of natural gas just before the explosion or if there was leakage and such leakage occurred within the gas-fired burner on the paint-drying oven or in any of its valves, controls or regulators or if it was uncertain whether a gas leakage existed in the gas piping or in the gas burner they should answer the question 'no.' Objection is made that the use of the word 'uncertain' in the instruction placed a greater burden on the plaintiff than proof to a 'reasonably certainty' would.

In this type of civil case the burden of the plaintiff is only to satisfy the jury to a reasonable certainty. The plaintiff is not required to remove all uncertainty. Kausch v. Chicago & M.E.R. Co. (1922), 176 Wis. 21, 186 N.W. 257; McGinty v. Brotherhood of Railway Trainmen (1917), 166 Wis. 83, 164 N.W. 249. However, in instructing generally on burden of proof the court correctly informed the jury that it was to be satisfied or convinced by a fair preponderance of the evidence to a reasonable certainty. The court also instructed the jury on probabilities and that it could not decide on mere possibilities or on speculation or conjecture. Instructions must be judged as a whole and in connection with the questions in the verdict and unless it can be reasonably said that instructions would probably, not possibly, mislead the jury, prejudicial error should not...

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    ...have previously noted in such situations, "it is apparent that we cannot say, using the mechanistic rule of Savina [v. Milwaukee Gas Light Co., 36 Wis.2d 694, 154 N.W.2d 237 (1967) ], [which restated the Lock rule] that on a retrial the [petitioning party] plaintiff would probably win." Lor......
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