Stewart v. Wulf

• Citation: 85 Wis.2d 461,271 N.W.2d 79
• Decision Date: 31 October 1978
• Docket Number: No. 76-072,76-072
• Parties: Mark C. STEWART, Plaintiff-Respondent, v. Thomas M. WULF and the Continental Insurance Company, Defendants-Appellants.
• Court: United States State Supreme Court of Wisconsin

Page 79

271 N.W.2d 79

85 Wis.2d 461

Mark C. STEWART, Plaintiff-Respondent, v. Thomas M. WULF and the Continental Insurance Company Defendants-Appellants.

No. 76-072.

Supreme Court of Wisconsin.

Argued Oct. 2, 1978.

Decided Oct. 31, 1978.

This is an appeal in a tort action. The appeal is brought by Thomas M. Wulf and The Continental Insurance Company, defendants-appellants. Judgment was entered against the defendants on a jury verdict finding the negligence of Wulf was a substantial cause of the injuries of Mark C. Stewart, plaintiff-respondent, and assigning 50 percent of the negligence to defendant-Wulf.

Robert G. Krohn (argued), Wickhem, Consigny, Andrews & Hemming, S. C., and O'Leary, Sutherland & Krohn, Janesville, on briefs, for defendants-appellants.

Edward Grutzner (argued), and Grutzner, Byron & Holland, S. C., Beloit, on brief, for plaintiff-respondent.

HANSEN, Justice.

The principal issues relate to the questions of causation and alleged trial court errors. The amount of the damages is not an issue on appeal.

During the first two weeks of December, 1972, Mark C. Stewart, the respondent, was a guest at the family home of Thomas M. Wulf, the appellant. Both were twenty years of age at the time. The bathroom in the home was located on the second floor. During the evening of December 13, 1972, Stewart went upstairs to the bathroom. He found it occupied. On the way to the bathroom he passed an upstairs bedroom which he had reason to believe was occupied by two of the defendant's younger sisters, ages eight and ten years. The door was open and he saw a pistol on the bed.

Respondent testified that he had been shown this pistol on the day of his arrival by Mark Wulf, the appellant's seventeen-year old brother, and had also seen the pistol three or four days later in the living room. Respondent testified that he knew the bedroom was used by appellant's younger sisters, and that his shock at seeing the gun in the children's bedroom prompted him to enter the room to examine the gun to determine whether it was loaded. The gun was a single-shot pistol that had the appearance of a revolver.

Respondent testified that he handled the gun in the following way: (These actions were demonstrated for the jury, first using a pen and later with the gun itself.) He picked up the gun and holding it with both hands pointed it away from him toward the wall. The judge described this position as appearing that his hands were clasped in prayer. Next he sat down on the bed and looked through the sight. He then pointed the gun at the floor because the gun might have been loaded and, he explained, "walls can be thin." He rotated or turned the gun in his right hand without placing his finger on the trigger or in the trigger guard. He said he did not "twirl" the gun. He explained, "I was thinking before I was going to unload it. Maybe I was feeling my coordination or something." He then passed the gun from right hand to left and back to right again. Finally, in order to look in the chamber, he pulled the hammer back with his right thumb while holding the gun in both hands. At this point he was startled by a loud noise, such as a door slamming.

Respondent lost control of the gun, fumbled with it in the air and attempted to catch it before it struck the floor. In the process the gun fired and the bullet entered his chest just above the sternum. The respondent was taken by ambulance to the hospital where he underwent surgery. There was no witness to the incident which resulted in his injury.

Respondent testified that he had had some previous experience with guns, that he did not know how to load or unload this particular gun, and that his actions were an attempt to familiarize himself with the gun and determine whether it was loaded.

Respondent said he realized there was a chance that the gun was loaded. He testified that he had held this same gun momentarily when Mark Wulf first showed it to him and that he had seen that it was unloaded at that time. He said that both appellant and Mrs. Wulf had told him that guns were always to be kept unloaded in the house. Appellant admitted making such a statement but Mrs. Wulf denied that she had said anything about guns to respondent. Respondent said he did not know that the Wulfs had gone hunting that day.

Sheila Stewart, the respondent's wife (who as Sheila Tucker and the appellant's girl friend was also staying with the Wulfs at the time of the incident), testified that she had seen the gun on the bed earlier that evening. She said she mentioned it to appellant and asked him two or three times to put it away, but that he responded he would do it later. Appellant denied that Sheila spoke to him about the gun that evening and Mark and Mrs. Wulf said they did not hear Sheila mention the gun.

Appellant testified that he, his brother Mark, and a friend had gone hunting the afternoon of December 13th. He said he had fired the pistol once that afternoon and that he could not remember if he had reloaded it. He admitted that he put the gun on the bed without checking to see if it was loaded. Appellant also testified that immediately after the shooting the respondent told him, when asked what happened, that he had pointed the gun at the wall, cocked it and fired it two or three times and that it had not gone off.

The appellant introduced testimony intended to impeach the credibility of the testimony presented by the respondent.

The jury found both parties causally negligent and assigned 50 percent of the negligence to each of them. The trial court approved the verdict and entered judgment accordingly.

This appeal presents the following issues:

1. Is the evidence sufficient to sustain the jury's finding that the negligence of the appellant was a substantial factor in causing the respondent's injuries?

2. Did the trial court commit error in failing to hold, as a matter of law, that

a. the respondent's causal negligence was greater than appellant's?

b. the respondent's negligence was a superseding cause which relieved the appellant of liability?

3. Did the trial court commit error in instructing the jury on the standard of care owed by a former possessor of a firearm?

4. Should this court relieve the appellant of liability for reasons of public policy?

There is no doubt the appellant was negligent in leaving the loaded pistol in plain view on the bed. However, the appellant challenges the jury's finding of cause, contending that leaving the loaded gun in the bedroom was not a substantial factor in causing the injury.

In Pfeifer v. Standard Gateway Theater, Inc., 262 Wis. 229, 55 N.W.2d 29 (1952), this court defined Cause as:

". . . (S)uch efficient cause of the accident as to lead the jurors, as reasonable men and women, to conclude that the negligence of A . . . was a Substantial factor in causing the injury." Id. at 237, 55 N.W.2d at 33.

An injury may be produced by several substantial factors, acting in sequence or simultaneously, and responsibility need not be restricted to the last and most immediate factor. Blashaski v. Classified Risk Ins. Corp. 48 Wis.2d 169, 174, 175, 179 N.W.2d 924 (1970). Cause is a question for the jury unless the facts are so clear that reasonable persons could not differ on the question. Schrank v. Allstate Ins. Co., 50 Wis.2d 247, 256, 184 N.W.2d 127 (1971).

Appellant argues that his negligence was not causal because he could not have foreseen that respondent would handle the gun the way he did, because the gun itself was harmless without interference and because its dangerous propensities were well known to the respondent.

In Osborne v. Montgomery, 203 Wis. 223, 234 N.W. 372 (1931), this court distinguished foreseeability and cause. In Osborne it was held that foreseeability is an element of negligence, not cause, Id. at 242, 234 N.W. 372. The leaving of a loaded gun laying about in a house where it would attract attention is a negligent act by which "an ordinarily prudent person, ought reasonably to foresee that he will thereby expose the interests of another to an unreasonable risk of harm." Id. at 242, 234 N.W. at 379.

The issue then is whether that negligence was a substantial factor in causing respondent's injuries. Appellant's reliance on Palmer v. Henry Disston & Sons, Inc., 261 Wis. 368, 52 N.W.2d 919 (1952), is misplaced. Palmer ran from a place of safety to direct the fall of a tree that defendant's employee had cut in a negligent manner. Palmer was injured because he deliberately and unnecessarily placed himself in the path of a falling tree in an attempt to direct its fall. This court stated, "(a)s he acted for the purpose of causing the tree to fall in a manner that would make it easier 'to skid it out after it fell,' he was acting to further his own interests. . . ." Id. at 372, 52 N.W.2d at 921. Under these facts this court concluded that the defendant was not negligent from the time the plaintiff gratuitously placed himself in danger.

In the present case the appellant's negligence both attracted the respondent to the scene and caused his injury. The appellant's negligence consisted of leaving the gun loaded and in an open place where it would attract attention. The respondent testified that he entered the room because he was shocked to see the gun laying on a child's bed. Respondent was shot because the gun was loaded the gun in that condition was not harmless itself. The injury was the result of a natural chain of events.

A jury verdict is to be sustained if, when the evidence is viewed in a light most favorable to the verdict, there is credible evidence to support it. Britton v. Hoyt, 63 Wis.2d 688, 693, 218 N.W.2d 274 (1974). The jury's finding that the appellant's conduct in leaving a loaded pistol on a bed in a children's room with the door open to a frequently used hallway was a substantial factor in causing respondent's injuries is based on credible evidence. The trial court agreed ". . . An injury that...