Strahlendorf v. Walgreen Co.

• Decision Date: 01 May 1962
• Parties: Karen STRAHLENDORF, an infant, by A. A. Hindin, her guardian ad litem, et al., Plaintiffs-Appellants, v. WALGREEN CO., a corporation, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 823

114 N.W.2d 823

16 Wis.2d 421

Karen STRAHLENDORF, an infant, by A. A. Hindin, her guardian ad litem, et al., Plaintiffs-Appellants, v. WALGREEN CO., a corporation, Defendant-Respondent.

Supreme Court of Wisconsin.

May 1, 1962.

Dissenting Opinion May 1, 1962.

Action by plaintiffs Karen Strahlendorf, a minor represented by her guardian ad litem, and Harry V. Strahlendorf, her father, against defendant Walgreen Co. to recover damages arising from an accidental injury to Karen resulting from the use by Karen's infant brother of a toy purchased from defendant.

Early in June, 1956, Karen's grandmother purchased three small plastic toy airplanes, mounted on a rectangular piece of cardboard, for twenty-nine cents at one of defendant's drugstores in the city of Milwaukee. The manufacturer of these planes was Royal Tot Co., Inc., of New York City. Each plane was about 2 1/2 inches long, with a wing span of about 3 1/2 inches, and was constructed of a thermoplastic material. The nose of the plane was relatively blunt, as it was a simulated jet. Also mounted on the card was a small stick with attached rubber band which was intended to perform the function of a catapult in launching the planes. The card bore the picture of the head of a little boy whose age might be anywhere from five to ten years. It also showed a picture of a pair of hands, one holding the plane and the other grasping the stick and rubber band extended to the plane, to illustrate how the plane was to be propelled into flight. Taking the width of the plane to be 3 1/2 inches, the rubber band was drawn back from the stick to the plane a distance of less than 14 inches. The card also contained instructions describing how to launch the planes. It stated that the planes would soar approximately 1,000 feet, and that: 'Your JET flies according to the direction of the takeoff and does stunt flying figures, loops, inverted rolls, nose-dives, turns and wide glides.'

The grandmother took this card with the three attached plastic planes to the home of her son, plaintiff Harry V. Strahlendorf, and gave it to her five year old grandson, Butchie, brother of Karen. That evening when Butchie's father returned from work, he experimented with two of the three planes for Butchie in the alley at the rear of their home. In so doing the father followed the instructions on the card. First he pulled the rubber band back only a short way and discovered that the plane would travel but a short distance and would then tumble down, not glide; nor would it go where aimed. The father then launched the two planes by pulling hard on the rubber band. Both zoomed off into neighbors' yards and were lost. The third plane was not launched at Butchie's request, but was preserved for later firing in an open field.

At the trial, the father testified that he thought the toy was dangerous and had forbidden his son to play with it. Also, that he had hidden the plane on a shelf in Butchie's closet which was beyond the boy's reach. However, the boy had retained the card on which the planes were originally attached. On August 3, 1956, Butchie somehow found the remaining plane and launching stick. He took them to the kitchen to show his six year old sister, Karen, how they worked. She was sitting under the kitchen window. He stood approximately five feet in front of her, and, apparently, aimed at the window expecting the plane to do a loop and come back to him. However, his mother, when testifying, illustrated the position of Butchie's hands when he released the plane. His right hand, which held the plane, was higher than the left hand holding the launching stick. This would indicate that Butchie's aiming of the plane was slightly downward. Butchie said, 'Look, Karen,' and let the plane go. It did not loop but struck Karen in the left eye seriously injuring it. Butchie's mother, who witnessed the accident, estimated that he pulled the rubber band back a distance of 14 1/2 inches in launching the plane.

The instant action was commenced May 29, 1958. Plaintiffs' complaint alleged three bases of liability:

(1) That defendant was negligent in selling a 'dangerous weapon and an inherently dangerous instrumentality' which it should have foreseen might cause injury to minors;

(2) That defendant was negligent in failing to place a warning on the instruction card of the inherent danger to persons using the toy jet plane for the purpose for which it was intended; and

(3) That defendant impliedly warranted that the plane was safe for use by minors.

Trial was had to the court and a jury. At the conclusion of the testimony, defendant moved for a directed verdict in its favor on all issues. The court granted this motion with respect to the cause of action grounded on breach of implied warranty, but denied it 'without prejudice' as to the cause of action grounded on common law negligence. The case was submitted to the jury on a special verdict. Only the first two questions of the verdict related to liability issues. The remaining questions related to damages. The first two questions of the verdict, and the jury's answers thereto, were:

'First Question: Was the defendant, Walgreen Co., negligent in selling the toy jet plane? Answer: Yes.

'Second Question: If you answer Question No. 1 'Yes,' then answer this question:

'Was such negligence, as found by you, a cause of the injury sustained by the plaintiff, Karen Strahlendorf? Answer: No.'

In instructing the jury, the court made it clear that in answering question No. 1 the jury might consider any negligence on defendant's part in failing to give an adequate warning by label, or otherwise, and in selling an article which is not inherently dangerous but which is imminently dangerous when used as intended.

The parties filed the usual motions after verdict. In disposing of these motions the court filed an extensive memorandum opinion in which it stated: 'The question of the negligence on the part of the defendant, under the circumstances of this case, was clearly one of law for the court.' The court also observed that, if it had reserved its ruling on defendant's motion for a directed verdict on the negligence issue until after the return of the verdict by the jury, it would then have granted the motion. The court concluded that defendant's motion for judgment on the verdict should be granted.

Judgment was entered March 22, 1961, dismissing plaintiffs' complaint on the merits with costs. Plaintiffs have appealed therefrom.

James D. Sammarco, Kersten & McKinnon, Milwaukee, E. Campion Kersten, Milwaukee, of counsel, for appellants.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, Kurt H. Frauen, Donald R. Peterson, Milwaukee, of counsel, for respondent.

CURRIE, Justice.

We are confronted with the following questions on this appeal:

(1) Was the found negligence of defendant causal as a matter of law?

(2) Did the trial court err in failing to give a requested instruction on intervening cause?

(3) Should any issue of defendant's negligence have been submitted to the jury?

(4) Did the trial court err in directing a verdict with respect to the cause of action for breach of implied warranty?

(5) Were the damages determined by the jury for the injury sustained by plaintiff child so inadequate as to require a new trial?

Causation Determination

Plaintiffs contend that the jury's answer of 'No' to the second question of the verdict should have been changed to 'Yes.' This contention is predicted on the premise that the found negligence of defendant was causal as a matter of law. The complaint charges two grounds of negligence against defendant. The first alleged ground of negligence was the sale by defendant of an inherently dangerous instrumentality. The second was the failure of defendant to place a proper warning on the instruction card cautioning purchasers and users of the inherent danger of using the plane for the purpose intended. An examination of the trial court's instructions to the jury, given with respect to the first question of the verdict, discloses that both of these alleged grounds of negligence were to be considered by the jury in answering this question. Therefore, it is impossible to tell from the jury's affirmative answer to this first question whether they found defendant negligent in both respects, or only as to one of the two alleged grounds.

It is an entirely logical hypothesis that the jury could have concluded that it was not negligent for defendant to have sold the toy plane, but that it was negligent in failing to place a proper warning on the accompanying instruction card on which the plane was mounted. However, plaintiff Harry V. Strahlendorf, father of Butchie and Karen, testified that as a result of testing two of the three planes he became aware of the fact that they were dangerous and that the remaining third plane should not be entrusted to Butchie. This is why he hid the plane from Butchie. From this, the jury reasonably could have determined that the lack of a proper warning on the instruction card was not a substantial factor in causing the accident to Karen because the father had already been alerted to any danger such printed warning might have accomplished. This reasoning would justify the jury's finding that defendant's failure to warn was not causal.

However, even if the jury's affirmative answer to the first question was not based on a failure to warn but upon some dangerous propensity of the toy plane, it does not follow that such found negligence was causal as a matter of law. One of the dangerous propensities charged by plaintiffs was that the plane was so small and might be propelled at such great speed that it was practically invisible when traveling a distance of several hundred feet. If the jury had based its 'Yes' answer to the first question on this dangerous propensity, it could well have concluded that this was not a substantial factor in causing Karen's injury in a situation where...