Webb v. Wisconsin Southern Gas Co.

• Decision Date: 27 April 1965
• Citation: 134 N.W.2d 407,27 Wis.2d 343
• Parties: Robert WEBB, Margaret M. Webb, and Pacific National Fire Insurance Co., an insurance corporation, Assignee, and Subrogee of Margaret M. Webb, Plaintiffs-Appellants, v. WISCONSIN SOUTHERN GAS COMPANY, Inc., a Wisconsin corporation, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 407

134 N.W.2d 407

27 Wis.2d 343

Robert WEBB, Margaret M. Webb, and Pacific National Fire

Insurance Co., an insurance corporation, Assignee, and Subrogee of Margaret M. Webb, Plaintiffs-Appellants, v. WISCONSIN SOUTHERN GAS COMPANY, Inc., a Wisconsin

corporation, Defendant-Respondent.

Supreme Court of Wisconsin.

April 27, 1965.

Berwyn B. Braden, Lake Geneva, for appellants.

Aberg, Bell, Blake & Metzner, Madison, for respondent.

HALLOWS, Justice.

The appellants contend the verdict is contrary to the credible evidence and the trial court was in error in failing to submit requested instructions.

The evidence concerning the explosion was conflicting and the jury accepted the defendant's version of how the accident happened and disbelieved the plaintiffs, which it had a right to do. Viewing the evidence in the light most favorable to the verdict, as we must, there is sufficient credible evidence to support it and the verdict should not be upset on appeal. Firkus v. Rombalski (1964), 25 Wis.2d 352, 130 N.W.2d 835; Springen v. Ager Plumbing & Heating, Inc. (1963), 19 Wis.2d 487, 120 N.W.2d 692. True, there is evidence to support the plaintiffs' version and as they contend the verdict is contrary to such evidence, but that fact alone is not enough to upset the verdict. The test is not what the jury could have found but whether what it did find is supported by sufficient credible evidence. Estate of Starer (1963), 20 Wis.2d 268, 121 N.W.2d 872.

The plaintiffs' home was heated by gas and consisted of several rooms which on the first floor included a bathroom and an adjoining utility room. The utility room could only be entered through the bathroom which was reached from a hallway which opened to the kitchen on one side and to the outdoors on the other. The gas water heater was located in the utility room and a gas space heater in the bathroom. Before the explosion, the door between the utility room and the bathroom was closed.

On the morning of April 3 Mrs. Webb arose about 7:00 a.m., used the bathroom and there was warm water. Shortly thereafter Mr. Webb used the bathroom, returned to the bedroom and partially dressed. He lit a cigarette and went back to the bathroom and started to open the door to the utility room when the explosion occurred. The space heater and part of one wall of the bathroom were blown into the yard. The door between the bathroom and the utility room was blown into the utility room, the two walls of the utility room were blown out, but the hot water heater was not damaged. There was evidence of charring and burning in the bathroom but not in the utility room.

The plaintiffs tried the case on the theory the pilot light of the gas water heater went out and the automatic shut-off valve failed to shut off the gas to the appliance. The gas water heater, which had a history of sporadic malfunctioning, was an automatic unit equipped with a safety shut-off value designed to automatically shut off the flow of gas to the burner whenever the pilot light was extinguished. The vent to the water heater extended outside the house but terminated beneath the eaves of the roof, a type of ventilation which was not recommended and under some wind conditions would cause the pilot light to go out. On several occasions in 1959 and in 1961 service calls were made to service the water heater. On the last call on March 24, approximately two weeks before the explosion, it was discovered the safety value was defective and would not shut off the gas when the pilot light went out. This could not be repaired and a new safety valve was ordered. There was some evidence the valve was reassembled defectively and put back into the heater.

Under the defendant's version there was testimony the serviceman had informed a Mr. Terrell, the father of Mrs. Webb who lived in the house, that the water heater should be operated manually until a new safety valve could be installed. Experts testified that in their opinion the explosion took place in the bathroom and not in the utility room. There was some dispute in the evidence of whether the gas space heater in the bathroom was in use. The Webbs testified they rarely used it; however, the space heater had been repaired on a service call when a new coil was placed therein approximately three months prior to the accident. Mr. Webb in giving the history of his injuries told two doctors he was injured by an explosion from a space heater in his home. The evidence was also conflicting on the use of the water heater. The plaintiffs testified they did not operate the heater manually but there is contradictory evidence Mrs. Webb asked her husband to light the hot water heater immediately before the explosion occurred and that was what he was going into the utility room to do. Other witnesses testified the Webbs had told them they were using the hot water heater manually.

The jury could find that in disregard of the instructions of the defendant's serviceman the plaintiffs were using the gas water heater automatically and the pilot light did go out. But if the plaintiffs were using the gas heather automatically against the instruction of the defendant, there would be no negligence on the part of the defendant but negligence for such use on the part of the plaintiffs. The jury might have found the plaintiffs were using the gas water heater manually and had failed to shut off the gas the night before the explosion and the gas escaped from the appliance when the thermostat called for heat. Either version would sustain the verdict as well as the...