Utica Mut. Ins. Co. v. Ripon Co-op.

• Decision Date: 05 March 1971
• Docket Number: 17,Nos. 16,s. 16
• Citation: 184 N.W.2d 65,50 Wis.2d 431
• Parties: UTICA MUTUAL INS. CO., Respondent, v. RIPON COOPERATIVE, a Wis. corp., et al., Appellants. Frank KALLIN et al., Respondents, v. RIPON COOPERATIVE, a Wis. corp., et al., Appellants.
• Court: Wisconsin Supreme Court

Page 65

184 N.W.2d 65

50 Wis.2d 431

UTICA MUTUAL INS. CO., Respondent, v. RIPON COOPERATIVE, a Wis. corp., et al., Appellants.

Frank KALLIN et al., Respondents, v. RIPON COOPERATIVE, a Wis. corp., et al., Appellants.

Nos. 16, 17.

Supreme Court of Wisconsin.

March 5, 1971.

These actions were commenced by plaintiffs, Utica Mutual Insurance Company, Frank Kallin and Olga Kallin against defendants, Ripon Cooperative and its insurance carrier, National Farmers Union Property and Casualty Company, for damages arising out of destruction of a farm barn by fire.

On December 16, 1966, the Ripon Cooperative delivered a load of ground corn to the farm of Frank Kallin. The cooperative truck in which the feed was delivered was a converted arrangement. The motor and frame were fairly new and were purchased from the manufacturer. However, after purchase, the defendants caused several additions and modifications to be made on the vehicle in order to make it suitable for the cooperative's purposes.

A large bin with sides was mounted on the rear of the truck. The feed in the bin would slide down the sides to a trough at the bottom. Once in this trough the feed would be propelled by a series of revolving augers up into a circular conduit pipe. This pipe was then aimed at the spot in the barn where the feed was to be deposited. The bin box, the auger system and the hydraulic and other power systems needed to operate them were all added by the defendants after purchase of the original vehicle. All of these extra systems were hooked into the original six-cylinder motor as their power source. One additional modification was the installation of an air filter device placed in front of the truck's radiator fan. Absent the filter, the engine and its moving parts became choked with dust because the radiator fan sucked the dust in from the surrounding air.

On the day in question, Elmer Klawitter, an employee of the cooperative, drove the truck out to the Kallin farm. Upon arrival, he positioned the truck with the front end nearly touching one side of the barn. This was customary because the conduit piping system extended from the feed bin behind the cab up over the roof of the cab and into the second story of the barn. He switched on the power take-off system which should have started the feed delivery system, but it did not. The augers were turning, but the feed was too wet to slide down the sides of the bin. So Klawitter climbed into the bin and shoveled feed into the auger trough. As he started shoveling, he heard the motor begin to rev up and down rapidly. He got out of the bin to turn the motor off and then noticed flames in the engine compartment near the right from wheel. He got a fire extinguisher from the cab and raised the hood. Flames shot up above the engine, and he poured the contents of the extinguisher on the fire. This did not extinguish the fire, so Klawitter ran into the barn where Arthur Seidlitz, the Kallins' hired hand, was spreading hay for bedding down the calves. Klawitter asked Seidlitz for some water to put out the truck fire. Seidlitz replied that the pump on the water tank was broken. Klawitter then asked Seidlitz for a chain to attach to the rear axle of the truck and asked Seidlitz to use a nearby tractor to haul the truck away from the barn. Seidlitz told Klawitter that he did not have time to monkey around with a chain or a tractor as he was busy watering his cattle. Seidlitz's background indicates that he would not have been of much assistance in the event of an emergency.

After this, Klawitter ran to the house, informed Kallin of the fire, and Kallin ran to the barn. Klawitter called the fire department and ran back to the barn to join him.

After giving Klawitter a chain to attach to the truck, Kallin positioned the tractor to haul the truck away. However, just as Klawitter bent down to hook up the chain, the rear tires exploded; and he was thrown several feet through the air away from the truck. By the time he recovered, the barn had started to burn, and all attempts to extinguish the fire were abandoned in favor of getting the cows out of the barn. The barn was totally destroyed.

Utica Mutual Insurance Company, Kallin's insurer, paid him the maximum allowable on his policy and became subrogated to Kallin's rights against third parties to the extent of such payment. Kallin's actual loss exceeded the policy limits; and, consequently, both he and his insurer commenced separate actions against defendants. These cases were consolidated for trial; and the jury returned a verdict attributing 100 percent of the causal negligence to the defendants. The trial court granted plaintiffs' motions for judgment on the verdict. Defendants appeal from the judgments and orders for judgment on the verdict.

Joseph D. Donohue, Fond du Lac, for appellants.

Thomas E. Hughes, Oshkosh, for Utica Mutual Ins. Co.

Hayes & Ritchay, Ripon, for Frank Kallin and others.

HANLEY, Justice.

Two issues are raised on this appeal:

(1) Did the trial court err in giving the res ipsa loquitur instruction; and

(2) Does the evidence support the apportionment of negligence?

The Res Ipsa Loquitur Instruction.

The res ipsa loquitur instruction given by the trial court reads as follows:

'* * * In addition thereto if you find that the defendant or its employees had exclusive control of the bulk feed truck involved in the fire, and if you further find that the fire claimed is of a type or kind that ordinarily would not have occurred had the defendant, or its employees, exercised ordinary care, then you may infer from the accident itself and the surrounding circumstances that there was negligence on the part of the defendant, or employees, unless the defendant has offered you an explanation of the fire which is satisfactory to you.'

The appellants contend that the trial court erred in giving the res ipsa loquitur instruction. In this jurisdiction the following conditions must be present before the doctrine of res ipsa loquitur is applicable: (1) The event in question must be of the kind which does not ordinarily occur in the absence of negligence; (2) the agency or instrumentality causing the harm must have been within the exclusive control of the defendant. Turk v. H. C. Prange Co. (1963), 18 Wis.2d 547, 553, 119 N.W.2d 365; Welch v. Neisius (1967), 35 Wis.2d 682, 686, 151 N.W.2d 735. When these two conditions are present, they give rise to a permissible inference of negligence which the jury is free to accept or reject. Knief v. Sargent (1968), 40 Wis.2d 4, 6, 161 N.W.2d 232.

In some cases it is clear from the nature of the event that the jurors, as laymen, are qualified on the basis of common human experience to decide whether the event is the kind which does not occur unless someone has been negligent. In Welch v. Neisius, supra, this court observed at 35 Wis.2d page 687, 151 N.W.2d page 737:

'In light of common experience, the court can fairly say that fertilizer bags such as those described in the evidence do not ordinarily fall from the stationary trailers in the absence of negligence on the part of someone. We conclude the first element of the doctrine of res ipsa loquitur appears satisfactorily from the evidence.'

Also in this category are the medical malpractice cases where a sponge or other foreign object is discovered in the plaintiff's abdomen after surgery.

Often the event or instrumentality involved may be so complex or involve such sophisticated knowledge that the jurors are unable to determine on their own whether the result is one which does not ordinarily occur unless someone has been negligent. In such a case, the plaintiff may still obtain the benefit of res ipsa loquitur if he can produce competent expert testimony which serves in the place of the jurors' common knowledge and gives them a rational basis for concluding that the event does not ordinarily occur unless someone has been negligent. Fehrman v. Smirl (1963), 20 Wis.2d 1, 121 N.W.2d 255, 122 N.W.2d 439; Shurpit v. Brah (1966), 30 Wis.2d 388, 141 N.W.2d 266; Knief v. Sargent, supra; Burnside v. Evangelical Deaconess Hospital (1970), 46 Wis.2d...