Turtenwald v. Aetna Cas. & Sur. Co.

• Decision Date: 03 October 1972
• Docket Number: No. 176,176
• Citation: 55 Wis.2d 659,201 N.W.2d 1
• Court: Wisconsin Supreme Court
• Parties: Donald A. TURTENWALD, Respondent, v. AETNA CASUALTY & SURETY CO. et al., Appellants.

Page 1

201 N.W.2d 1

55 Wis.2d 659

Donald A. TURTENWALD, Respondent, v. AETNA CASUALTY & SURETY CO. et al., Appellants.

No. 176.

Supreme Court of Wisconsin.

Oct. 3, 1972.

Borgelt, Powell, Peterson & Frauen, Milwaukee (Donald R. Peterson, Milwaukee, of counsel), for appellants.

Merten, Connell & Sisolak, Milwaukee (James G. Sisolak, Milwaukee, of counsel), for respondent.

BEILFUSS, Justice.

Although not stated precisely in this manner by the parties, the issues are:

1. Was it error to give a res ipsa loquitur instruction to the jury?

2. Was it error to strike the testimony of a witness recalled after he said his memory was refreshed?

3. Are the damages excessive?

The following conditions must be present before the doctrine of res ipsa loquitur is applicable: (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. Utica Mut. Ins. Co. v. Ripon on Cooperative (1971), 50 Wis.2d 431, 184 N.W.2d 65; Welch v. Neisius (1967), 35 Wis.2d 682, 151 N.W.2d 735; and Turk v. H. C. Prange (1963), 18 Wis.2d 547, 119 N.W.2d 365. This court has held that a third element which is required in other states--that '. . . it must not have been due to any voluntary action or contribution on the part of the plaintiff', is not a bar to the application of this doctrine. The reason is that Wisconsin is a comparative negligence state. Welch v. Neisius, supra, 35 Wis.2d p. 687, 151 N.W.2d p. 737.

The defendants-appellants contend that the instrumentality was not in the exclusive control of defendant Konieczny. We believe the evidence establishes that Konieczny was the only one in the truck and he, exclusively, handled all of the parts which were moved therein to the trailer door. True, the Humphrey employees helped to unload, but only to the extent of taking the parts set at the door and then bringing them into the parts department. There was testimony that right after the accident Konieczny jumped from the truck and no one else was in the truck nor seen leaving it at that time. As we stated in Welch v. Neisius, supra, the right to exclusive control must be read to mean that the defendant at the times material did in fact exercise exclusive control over the instrumentality. This is the situation here. The evidence shows that at the time of the accident Konieczny was in exclusive control of the instrumentality (the cylinder) because he was the only one who had been in the trailer or was in the trailer when the cylinder came out, striking Turtenwald.

This is the type of accident that does not ordinarily occur without someone's negligence. In a matter of seconds a 100-pound cylinder came out of the trailer's west door striking the respondent who stood not less than five feet away. There was no evidence proffered by defendants-appellants that the accident could have happened without someone's negligence. In fact, the only defense suggested was that Turtenwald caused the accident, not Konieczny.

It is argued that expert testimony is needed to explain how a cylinder weighing 70 to 300 pounds can fly from the flatbed of a trailer five to 10 feet if not thrown by Konieczny. The facts of this case show that expert testimony is not needed. First, because the cylinder weighed only about 100 pounds, ² and second there was an admission by Konieczny that he could have shoved it too far. All that Turtenwald maintains is that it came out of the trailer in some manner caused by Konieczny's negligence. Konieczny, Carpenter and Turtenwald all testified that they did not know exactly how it came out. There is simply nothing complex about this event which would require expert testimony. The jurors would be qualified on the basis of their common human experience to decide whether the event is the kind which does not occur unless someone has been negligent.

Appellants contend that even if the res ipsa loquitur doctrine is applicable, the instructions given were erroneous. ³ The reason given is that the instruction should have been limited--that is, so qualified that it would be applicable only if the jury first found the cylinder was not propelled out by Konieczny and then only if it left the trailer by some unknown manner. This contention is based upon the additional contention that the great weight of the plaintiff Turtenwald's proof is that Konieczny either shoved or threw the carton out of the trailer. If the evidence offered shows substantial proof of negligence on the part of the defendants, which if accepted by the jury is a complete explanation of the accident, then giving the res ipsa loquitur instruction is superfluous and erroneous. In some cases the adequacy of the proof is a close question and in those instances giving the instruction rests within the sound discretion of the trial court. Fehrman v. Smirl (1964), 25 Wis.2d 645, 131 N.W.2d 314. However, it is reversible error to give an unqualified instruction when the record discloses that the great weight of evidence tends to establish that a specific negligence caused the event in question. Mixis v. Wisconsin Public Service Co. (1965), 26 Wis.2d 488, 132 N.W.2d 769. The tests to be applied to determine when the doctrine is applicable and when its instruction must be limited therein are set out in Utica Mut. Ins. Co. v. Ripon Co-operative, supra. This case basically states that when both parties have rested and a negligence case is ready for the jury, either of two conditions may exist which would render it error to give the res ipsa loquitur instruction. The first occurs when the plaintiff has proved too little--that is, if there has been no evidence which would remove the causation question from the realm of conjecture and placed it within the realm of permissible inferences. The second situation where it is also error occurs when the plaintiff's evidence in a given case has been so substantial that it provides a full and complete explanation of the event if the jury chooses to accept it. In that case the cause is no longer unknown and the instruction will be superfluous and erroneous. However, a middle ground exists between these two extremes where the instruction will still be proper. Professor Prosser describes this situation as follows:

'. . . the introduction of some evidence which tends to show specific acts of negligence on the part of the defendant, but which does not purport to furnish a full and complete explanation of the occurrence does not destroy the inferences which are consistent with the evidence, and so does not deprive the plaintiff of the benefit of res ipsa loquitur.' Prosser, Law of Torts (hornbook series, 4th ed.), p. 232, sec. 40; Utica Mut. Ins. Co. v. Ripon Cooperative, Supra; and Fehrman v. Smirl, supra.

The evidence in this case is not substantial because it does not provide a complete explanation of the causal events that transpired. How the accident happened is still unknown. We really only know that Konieczny somehow set these factors into motion and not the manner in which they transpired. The only theory as to the cause which is supported by any evidence is based on Konieczny's admission as stated by Turtenwald, which Konieczny denied making when he testified. The other theories discussed at trial were based on conjecture and speculation.

Other than Konieczny's admission, the evidence only went to establish that he was in exclusive control of the instrumentality and the accident could not have ordinarily happened but for someone's negligence. Therefore this evidence only takes the causation question out of the realm of conjecture and places it in the realm of permissible inferences. Respondent has not proved too little nor too much. It appears that respondent's evidence falls within this middle ground, making the res ipsa loquitur instruction proper and it need not be limited. The judge did evaluate the possibility of error in giving this instruction, but after considerable deliberation felt it was proper. We agree.

The defendants-appellants next assign several errors dealing with evidentiary problems which culminate in the alleged erroneous striking of that part of the testimony of the witness Carpenter after he was recalled and stated his memory had been refreshed. We will consider all the alleged errors together.

The plaintiff in this action, Turtenwald, was an employee of Humphrey Chevrolet and as such was entitled to workmen's compensation benefits. The Employers Mutual Insurance Company was the compensation carrier for Humphrey and as such was adverse to Turtenwald until the compensation questions were determined, but was united in interest and not adverse in this action.

About five months after the accident, on September 19, 1968, a Mr. Powers, an adjuster or investigator for Employers Mutual, interviewed Carpenter, who has heretofore been identified as a co-employee and witness to the accident. The itnerview was electronically recorded but was never transcribed. A few days after the statement was taken, Powers dictated a resume from his recollections of the interview and also prepared a diagram of the scene, including indications of the positions of Turtenwald...