Wagner v. Daye

• Decision Date: 10 April 1975
• Docket Number: No. 379,379
• Citation: 227 N.W.2d 688,68 Wis.2d 123
• Parties: James WAGNER, a minor, by his gdn. ad litem, James J. Murphy, et al., Respondents, v. Lloyd DAYE, Defendant, International Harvester Co., Appellant.
• Court: Wisconsin Supreme Court

Page 688

227 N.W.2d 688

68 Wis.2d 123

James WAGNER, a minor, by his gdn. ad litem, James J Murphy, et al., Respondents, v. Lloyd DAYE, Defendant International Harvester Co., Appellant.

No. 379.

Supreme Court of Wisconsin.

April 10, 1975.

This is an action brought on behalf of plaintiff-respondent James Wagner, who was a minor at the time, to recover damages for the loss of his hand in a farm accident. Plaintiff's right hand was amputated at the wrist when he reached into the chute on a harvester belonging to the defendant-respondent Lloyd Daye. The machine was manufactured by defendant-appellant International Harvester Company. The theory of plaintiff's case against Daye was breach of the common law duty to furnish a reasonably safe place of employment. The theory of the case against International Harvester was strict liability because the cutting mechanism on the machine was positioned so close to the chute as to constitute an unreasonable hazard and an adequate warning of the danger was not placed on the machine.

At the close of plaintiff's case, Daye moved for a nonsuit. The motion was denied by the trial court. After all the evidence was in, plaintiff moved for a dismissal as to Daye. International Harvester objected to the dismissal. The court granted the motion for dismissal, with prejudice.

Thereafter, International Harvester moved that a question be included in the special verdict on the negligence of Daye. This motion was denied by the court. The jury returned a verdict finding that the machine as manufactured was unreasonably dangerous to prospective users and that this danger was a cause of the plaintiff's injuries. It also found the plaintiff was negligent for his own safety, and apportioned the negligence 25 percent to the plaintiff and 75 percent to International Harvester. Damages were assessed at $102,470.65.

The usual motions after verdict were made and denied. International Harvester appeals from a judgment on the verdict.

Crowns, Merklein, Midthun & Metcalf, Wisconsin Rapids, for appellant.

Habush, Gillick, Habush, Davis & Murphy, by James J. Murphy, Milwaukee, for respondents.

Fulton, Menn & Nehs, Ltd., Appleton, by Glenn L. Sharratt, Appleton, of counsel, for defendant.

CONNOR T. HANSEN, Justice.

The issues raised by International Harvester relate solely to whether the judgment should be reversed and a new trial should be granted. Accordingly, we do not consider whether the dismissal of Daye operated as a bar to a subsequent suit for contribution, or whether it required dismissal of the case against International Harvester as well by analogy to the rule that the release of one joint tort-feasor is the release of all. We conclude that the trial court committed prejudicial error in dismissing Daye from the case over the objections of International Harvester and in refusing to submit a question on Daye's negligence to the jury. To correct this error, it is necessary to grant a new trial on the issue of liability.

In support of the judgment, it is argued that the plaintiff had the right to pick and choose his defendants, and the trial court's action only confirms this right. It is further argued that any claim...