Venne v. Damrow Bros. Co.

• Citation: 212 N.W. 796,192 Wis. 249
• Parties: VENNE v. DAMROW BROS. CO.
• Decision Date: 08 March 1927
• Court: Wisconsin Supreme Court

192 Wis. 249

212 N.W. 796

VENNE

v.DAMROW BROS. CO.

Supreme Court of Wisconsin.

March 8, 1927.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Action by L. J. Venne against the Damrow Brothers Company. Judgment for plaintiff, and defendant appeals. Affirmed.--[By Editorial Staff.]

The action is brought to recover damages for personal injuries. The defendant is a domestic corporation, located at Fond du Lac, and engaged in the manufacture and repair of dairy appliances. The plaintiff and one Smith were the owners of certain high pressure tanks, manufactured by a corporation in Chicago known as the Liquid Carbonic Company, and used in the manufacture of root beer. These tanks are about 30 inches in height and 14 inches in diameter, are cylindrical in shape, are constructed out of 14-gauge steel, and contain an inner lining of block tin. The top of the cylinder consists of a cover, which, when properly placed upon the body of the cylinder, overlaps the same a distance of about 3 inches. The testimony shows that, in order to safely fasten the cover onto the body of the cylinder, it becomes necessary to tin the surfaces coming in contact with each other, in order that the solder applied to the contact surfaces may create such an adhesion and union as to withstand high pressure. In order to place the cover in the required position, it is pressed down by force to the full extent of the required overlap. The cylinder is then inverted, and solder is applied to the rim, and, in order that it may permeate all of the contact surfaces, a blow torch is used, which liquifies the solder and causes it to cover such contact surfaces.

When the cylinders were delivered to one Rosenow, the foreman having in charge the repairing department of the defendant, he was informed, according to the testimony of Mr. Smith, that these tanks would be required to withstand an air pressure of 150 pounds to the square inch. The tanks were left with the defendant for repair, which consisted in placing therein a new inner lining in place of the old. Some time after the work had been completed, the tanks were delivered by Rosenow to the plaintiff and Smith, and it was testified to by them that Rosenow's attention was again called to the fact that these tanks were pressure tanks, and were required to withstand a pressure of 150 pounds to the square inch, and that Rosenow replied, in substance, that they had been fully tested. A short time after the delivery of the tanks they were used in Oshkosh in a public gathering, for the purpose of maufacturing root beer, and, when pressure had been applied to the extent of about 100 or 110 pounds to the square inch, one of these tanks exploded, causing severe injury to the plaintiff.

The case was submitted to the jury on a special verdict, and the jury found, among other things: (1) That the defendant failed to use ordinary care and skill in repairing the container that burst; (2) that such want of ordinary care and skill constituted the proximate cause of plaintiff's injuries; (3) that Mr. Smith did not fail to inform the defendant that the containers would be subjected to a pressure of 150 pounds; and (4) that the plaintiff ought not to have known that the defendant would be likely to be wanting in the skill or equipment necessary to proper repair of the containers.

Upon the usual motions after verdict, the court ordered judgment in plaintiff's favor, and, upon the entry thereof, the defendant prosecuted this appeal. Further facts will be found in the opinion.Sutherland, Hughes & Sutherland and J. M. Gooding, all of Fond du Lac, for appellant.

Reilly & O'Brien, of Fond du Lac, for respondent.

DOERFLER, J.

These air pressure tanks were taken by Smith to defendant's factory and left with the foreman, Rosenow, so that they might be taken apart and new inner linings placed therein. The defendant at that time did not manufacture or repair high pressure tanks, but was engaged in manufacturing and repairing milk cans and tanks, gasoline tanks, and other similar articles. Smith testified that Rosenow was fully informed by him, when the tanks were so left for repair, that they were used in the manufacture of root beer, an aerated product, and that they would be required in the process of manufacture of such product to withstand an air pressure of 150 pounds to the square inch.

[1] That a cylinder subjected to such an unusual pressure may become a dangerous instrumentality, if it is wanting in resisting power, constitutes a fact which requires no argument or explanation. That such an appliance, when subjected to high pressure, is no stronger than its weakest point, is a well-known physical and scientific fact, which the great mass of mankind is well aware of, and of which courts may and do take judicial notice. The cylinder itself was constructed of 14-gauge steel, which, together with the inner lining, made it a cumbersome and weighty appliance, and which fact, when viewed in the light of the purpose for which it was used, had a tendency to convey to the manufacturer or repairer the idea of great resisting qualities. To replace an inner lining required a dismemberment of the cylinder, and the removal of the cover exposed to the repairer the full extent of the contact surfaces, which were of the width of about three inches, and also disclosed the method pursued to obtain a safe union by means of the soldering process. The inner lining was composed of block tin, a substance that will liquify as readily as the composition used for soldering, on the application of intense heat.

Rosenow knew that, if a blow torch is applied to the rim and the outer surface of the cover, which overlapped the body, the inner lining would be melted and thereby put out of commission, unless some proper preventive measures were resorted to. When the cover was removed, it was ascertained that a layer of asbestos or other paper had been placed between the inner lining and the cylinder proper, and he knew the purpose for which such paper had been so used. That a hollow vessel like the cylinder in question could be filled with water, in order to neutralize the intensive head generated and applied by a blow torch, does not constitute a secret scientific process, but a fact which most persons of ordinary intelligence, and particularly those engaged in manufacturing, like the defendant, can readily be assumed to know; at least, it formed the basis of a logical inference on the part of the jury.

The repair of the cylinder, and its replacement in a condition reasonably safe for its use, was undertaken by the defendant, with ample opportunity to observe every requirement for a reasonably safe appliance. This knowledge was not only in the possession of the foreman, but of the expert workman, who, under the direction and supervision of Rosenow and of Damrow, the president of the company, performed the work. But, in order that there might be no misunderstanding with respect to the air pressure that these tanks would be subjected to, Smith, a part owner of these tanks, as the jury found, notified the foreman that these were high pressure tanks, used in the manufacture of root beer, and that they would be obliged to resist an air pressure of 150 pounds to the square inch. Both the plaintiff and Smith testified that, when the tanks were delivered, Rosenow's attention was again called to the high pressure of these tanks in the manufacture of root beer, and that in substance Rosenow replied that they were all right, and had been tested. If the jury believed this testimony, both Smith and the plaintiff were warranted in inferring that an air pressure test had been resorted to, and that the tanks successfully withstood such test.

[2] Under these facts and circumstances, it is argued by defendant's counsel that, inasmuch as the plaintiff and Smith did not in express language communicate to Damrow, the president of the company, the degree of pressure to which these tanks would be subjected, the defendant cannot be held liable. Rosenow was the foreman of the defendant in its repair shops. Oberreich was the expert workman. Rosenow obtained all of the knowledge aforesaid as the agent and representative of the defendant in the course of his agency. and it would be an anomalous holding of a court,...