Schwalbach v. Antigo Elec. & Gas, Inc.

• Decision Date: 01 June 1965
• Citation: 135 N.W.2d 263,27 Wis.2d 651
• Parties: Lawrence SCHWALBACH et al., Plaintiffs-Respondents, v. ANTIGO ELECTRIC AND GAS, INC., a Wis. corporation, Defendant-Respondent, International Telephone & Telegraph Corp., a foreign corporation, Defendant-Appellant,
• Court: Wisconsin Supreme Court

Page 263

135 N.W.2d 263

27 Wis.2d 651

Lawrence SCHWALBACH et al., Plaintiffs-Respondents, v. ANTIGO ELECTRIC AND GAS, INC., a Wis. corporation Defendant-Respondent International Telephone & Telegraph Corp., a foreign corporation, Defendant-Appellant,

Supreme Court of Wisconsin.

June 1, 1965.

Smith, Puchner, Tinkham & Smith, Wausua, for appellant.

Graunke & Boone, Wausau, for plaintiffs-respondents Schwalbach.

Schmitt, Wurster, Tinglum & Nolan, Merrill, for defendant-respondent.

BEILFUSS, Justice.

The principal issue is whether the credible evidence is sufficient to sustain the jury findings (1) that a malfunction of the pilot relay caused the explosion, and (2) that International was negligent in the manufacture of the pilot relay.

International also contends that the verdict is inconsistent insofar as it found Antigo negligent as to inspection of the pilot relay but not causally so, and that the answers to damage questions cannot be sustained because of the insufficiency of the proof and erroneous ruling as to admission of evidence.

In testing the sufficiency of the evidence to sustain a jury verdict, the following rules apply:

'* * * When a jury verdict is attacked we inquire only whether there is any credible evidence that, under any reasonable view, supports the verdict. This is especially so when the verdict has the trial court's approval.' Chetham v. Piggly Wiggly Madison Co. (1964), 24 Wis.2d 286, 290, 128 N.W.2d 400, 402.

'* * * When several inferences may reasonable be drawn from credible evidence, one of which will support a claim of one of the parties and the other inferences will not, it is for the jury to determine the proper inference to be drawn from the conflicting evidence. Although we could sustain a contrary result if found by the jury, it is our duty not to set aside a verdict when it is approved by the trial court, as here, and when there is credible evidence to sustain it.' Dickman v. Schaeffer (1960), 10 Wis.2d 610. 616, 103 N.W.2d 922, 926.

A companion and qualifying rule is that a verdict cannot stand on conjecture, unproved assumptions or mere possibilities. ¹

While we have reviewed the entire record we report only such facts that support or tend to support the verdict under the rules stated above.

We first consider the issues involving the explosion.

In 1961, Antigo sold and installed a Coleman gas furnace for the plaintiffs in the basement of their farm home in the village of Eland, Shawano county, Wisconsin.

The furnace was designed to use liquid petroleum gas (heavier than air), which was supplied from a storage tank located in the yard. It came equipped with a pilot relay. A pilot relay is an electrically operated safety device. Its function is to shut off the supply of gas when the pilot light is not burning.

Two valves are principally involved,--one is a manually operated valve that can shut off the gas at its source at the tank,--the other is an automatic valve that controls the flow of fuel to the burner pot of the furnace. If the room temperature is below the thermostat setting this valve automatically opens and fuel is supplied to the burner; when the room temperature reaches the thermostat setting, the valve automatically shuts off. If (for a variety of reasons) the pilot light is not burning and room temperature is below the thermostat setting, the automatic valve would open and fuel would run into the burner or fire pot and eventually overflow, creating a dangerous condition because of the combustible character of the fuel.

The function of the pilot relay is to prevent this situation. It is to shut off or close the authomatic valve when the pilot light is out. The pilot light is supposed to be burning at all times except when intentionally extinguished. The pilot relay acts only when the pilot light is out. Adjacent to the pilot light is a thermocoupler. The pilot light supplies continuous heat to the thermocoupler. If the pilot light is not burning the thermocoupler then cools and transmits and electrical impulse to pilot relay. It breaks a contact in the pilot relay which then in turn closes the automatic valve and cuts off the supply of fuel to the burner.

Between the installation in May, 1961, and the explosion in October, 1963, Antigo made several service calls to plaintiffs' home to check the furnace.

In April of 1963, Antigo, in response to a service call, replaced the pilot relay on plaintiffs' furnace with one taken from a demonstrator furnace in Antigo's showroom. This pilot relay was manufactured by General Controls in 1959 and was mounted on a Coleman gas furnace. In the showroom the pilot relay had been demonstrated five or six times and functioned properly on each occasion.

In June and July, 1963, plaintiffs called Antigo and complained of a smell of gas. Antigo checked all the lines for leaks and found none. The pilot relay was not checked after it was installed in plaintiffs' home.

In October, 1963, a violent explosion in the basement demolished the plaintiffs' home and their furnishings.

The day after the explosion an employee of Antigo, a Professor Harrison, and others went to the scene of the explosion to determine the cause of the explosion. It was found that the pilot relay was not functioning. The pilot relay was removed from the furnace. An examination revealed that the contact points were not in a position to shut off the valve supplying fuel to the furnace.

Professor Harrison is an associate professor of mechanical engineering at the University of Wisconsin. He is a registered engineer. He has taught courses relating to the design of automatic controls and worked for a company manufacturing automatic controls. He has coauthored two books on automatic controls. These texts are widely used. He does research and consultation work, and has been a consultant in respect to accidents involving automatic controls.

Professor Harrison testified that he tested the pilot relay electrically both at the scene of the explosion and at his office and found it was closed and not operating as a safety device. It was his opinion that it was not damaged in the explosion. The relay is a sealed unit with the seal intact at the time it was examined. It did not bear any marks or evidence to indicate it might have been mishandled or damaged in the explosion so as to cause it to malfunction. He further testified that a nonfunctioning pilot relay can create a highly dangerous situation because of the explosive characteristics of the liquid gas. It was his opinion that the pilot relay was faulty in design in that it did not have a 'window' for visual inspection and that it was faulty in its manufacture because of not enough clearance between the contact points (it had a clearance of 40/1000 of an inch,--Harrison stated he would not design or approve one with less than 20/1000), and that the pin to push the points apart was too short.

Harrison then testified that in his opinion his investigation revealed that other possible causes of the explosion were eliminated; that the pilot relay was not functioning and was the cause of the explosion. It was his further opinion that the pilot relay was faulty when it left the factory and that it never worked properly. When confronted with the testimony that this pilot relay had worked properly in demonstrations in Antigo's showroom, he receded from his opinion that it did not function properly when it left the factory but adhered to his opinion that it was not functioning prior to the explosion and caused the explosion.

A Mr. Laurence Biggle, an employee of International, was called as an expert witness. For many years he has designed and tested automatic gas controls. It was his opinion that the pilot relay was properly tested and approved before it left the factory, that it could have been damaged in the explosion and that the explosion could have been caused by other gas leaks in the system. The main gas valve was disassembled. Some small foreign particles were found under the diaphram. Biggle testified this could cause a gas leak--Harrison said it would not.

The jury could accept or reject the testimony of the experts. The credibility of the witnesses and the weight to be given their testimony was within the province of the jury.

Mr. Biggle did not express an opinion as to what specifically caused the explosion but rather testified as to ways it could have happened.

International contends that Professor Harrison's opinions were based upon assumptions that were either not established or demonstrated not to be...