Wheeler v. General Tire and Rubber Co.

• Decision Date: 30 December 1987
• Docket Number: No. 86-0353,86-0353
• Citation: 419 N.W.2d 331,142 Wis. 2d 798
• Parties: , Prod.Liab.Rep. (CCH) P 11,655 George WHEELER and Shirley Wheeler, Plaintiffs-Respondents, v. GENERAL TIRE AND RUBBER COMPANY, a foreign corporation, and Liberty Mutual Insurance Company, a foreign corporation, Defendants-Co-Appellants, United States Fire Insurance Company, Defendant, Kelsey-Hayes Company, a foreign corporation, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 331

419 N.W.2d 331

142 Wis.2d 798, Prod.Liab.Rep. (CCH) P 11,655

George WHEELER and Shirley Wheeler, Plaintiffs-Respondents, v.GENERAL TIRE AND RUBBER COMPANY, a foreign corporation, and Liberty Mutual Insurance Company, a foreign corporation, Defendants-Co-AppellantsUnited States Fire Insurance Company, DefendantKelsey-Hayes Company, a foreign corporation, Defendant-Appellant.

No. 86-0353.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 20, 1987.

Opinion released Dec. 30, 1987.

Opinion filed Dec. 30, 1987.

Andrew O. Riteris and James E. Bauman, and Michael, Best & Friedrich, Milwaukee, for defendant-appellant.

J. Ric Gass and Kasdorf, Lewis & Swietlik, S.C., Milwaukee, for defendants-co-appellants.

Eric J. Van Vugt and Michael J. Collard, and Minahan & Peterson, S.C., Milwaukee, for plaintiffs-respondents.

Before GARTZKE, P.J., and DYKMAN and EICH, JJ.

GARTZKE, Presiding Judge.

General Tire and Rubber Company, Liberty Mutual Insurance Company, and Kelsey-Hayes Company appeal from a judgment for personal injuries to George Wheeler in 1979 when a tire he was mounting on a rim exploded.A procedural issue exists: whether the death of George Wheeler during his appeal was suggested on the record within the meaning of sec. 803.10(1)(a), Stats., and his claim must be dismissed because a motion to substitute his personal representative was not timely made.We conclude that his death was not suggested on the record and his claim need not be dismissed.The substantive issues are the sufficiency of evidence to support the apportionment of zero percent causal negligence to Wheeler, to support the apportionment of forty percent causal negligence to General Tire, and to support the punitive damages award; whether the trial court properly allowed the pleadings to be amended to add a punitive damages claim against Kelsey-Hayes; and whether the court should have evaluated the sufficiency of the evidence as to punitive damages before submitting the case to the jury.Finding no error, we affirm.

On November 23, 1979 George was injured at his place of employment.The tire explosion was probably ¹ caused when he inflated a sixteen inch General Tire tire he had mounted on a sixteen and one-half inch Kelsey-Hayes rim.When a sixteen inch tire is mounted on a sixteen and one-half inch rim and is inflated, the bead on the tire will not seat properly and the tire may explode.

George and his wife, Shirley, commenced this action against appellants, alleging strict liability and negligence claims.Their theory was that before the tire and rim were manufactured in 1977, General Tire and Kelsey-Hayes knew of the danger associated with mismatching a tire and rim but failed to include warnings on their products.The complaint sought punitive damages only from General Tire.The trial court permitted plaintiffs to amend their complaint at trial to claim punitive damages against Kelsey-Hayes.

The jury found both General Tire and Kelsey-Hayes liable under strict liability and negligence theories, and attributed forty percent of the cause of George's injuries to General Tire, forty percent to Kelsey-Hayes and zero percent to George.²It awarded $500,000 compensatory damages to George and $160,000 compensatory damages to Shirley, and assessed $200,000 punitive damages against both General Tire and Kelsey-Hayes.The trial court awarded $22,868.76 in medical expenses.

1.Death of George Wheeler Pending Appeal

Counsel for George and Shirley Wheeler wrote to the court in December 1986 regarding difficulties in obtaining trial transcripts from the court reporter.In the last paragraph of his letter, counsel stated that George Wheeler had died.A copy of the letter was mailed to opposing counsel.Because no motion was made to substitute the personal representative of the estate George Wheeler, we directed the parties to file memoranda on the effect, if any, of sec. 803.10(1), Stats., in light of sec. (rule) 809.84, Stats.

If a party dies during an appeal, we expect that this court and all parties will be advised.Death may moot the appeal.Appointment of a personal representative may avoid future problems regarding authority of counsel, settlement, costs, satisfactions and the like.The rules of appellate procedure in Ch. 809, Stats., do not, however, specify what is to be done if a party to an appeal dies pending appeal.

Because the appellate rules do not cover the matter, the rules of civil procedure govern unless the circumstances of the appeal or the context of the rule of civil procedure requires a different result.Sec. (Rule) 809.84, Stats.The rules of civil procedure have a provision regarding death while an action is pending in the trial court.Section 803.10(1)(a), Stats., provides:

[i]f a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in s. 801.14 and upon persons not parties in the manner provided in s. 801.11 for the service of a summons.Unless the motion for substitution is made not later than 90 days after the death is suggested on the record by service of a statement of the facts of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

Since neither the circumstances of this appeal nor the context of the rule of civil procedure requires a different result, we conclude that sec. 803.10(1)(a) applies.

The question is whether counsel's reference in his letter to the death of George Wheeler is a suggestion of death on the record within the meaning of sec. 803.10(1)(a), Stats.Appellants contend that the letter is such a suggestion and because decedent's personal representative was not substituted for him within the 90 day period provided in sec. 803.10(1)(a), his claim must be dismissed.We conclude that this is not the case.

No reported decision has decided what is a suggestion of death on the record for purposes of sec. 803.10(1)(a), Stats.However, this rule of civil procedure adopted by our supreme court is almost identical to and is based on Rule 25(a)(1) of the Federal Rules of Civil Procedure.Judicial Council Committee's Note, 67 Wis.2d 653(1974).When a Wisconsin rule of civil procedure is based on a federal rule, the decisions of the federal courts may be persuasive.Carlson Heating, Inc. v. Onchuck, 104 Wis.2d 175, 179 n. 2, 311 N.W.2d 673, 675-76(Ct.App.1981).

Rende v. Kay, 415 F.2d 983, 985(D.C.Cir.1969), notes that Rule 25(a)(1) establishes a time limit for a motion to substitute based on the time a suggestion of death is made on the record.A motion to substitute may be made by any party without awaiting the suggestion of death, but if a party desires to limit the time within which another may make the substitution, this may be accomplished by suggesting a death on the record.The delay in effecting a substitution may be avoided "either by filing a motion for substitution or by suggesting death on the record and thus triggering the 90-day period which begins with suggestion of death."Id.

Even if all parties know that a party has died, the 90-day limit in Rule 25(a)(1) is not triggered until service of the suggestion of death.United States v. Miller Brothers Constr. Co., 505 F.2d 1031, 1034-35(10th Cir.1974), Henkel v. Stratton, 612 F.Supp. 190, 191 n. 1(N.D. Ohio1985)."[T]he time for filing a motion for substitution commences only after the death of the party is formally suggested on the record ..."Blair v. Beech Aircraft Corp., 104 F.R.D 21, 22(W.D.Pa.1984), aff'd, 787 F.2d 580(3d Cir.1986)(emphasis added).The Blair court held that the mere filing of a pleading referring to a death was not a suggestion of death on the record.

We conclude that reference to the death of George Wheeler in a letter to the court of appeals was not a suggestion of death on the record within the meaning of sec. 803.10(1)(a), Stats.Accordingly, the letter did not trigger the 90-day period in which to file a motion for substitution.George Wheeler's claim need not be dismissed for failure to substitute the proposed representative of his estate.In view of our disposition of this issue and the fact that no motion to substitute has been filed, we need not order that Wheeler's personal representative be substituted.

2.Apportionment of Negligence to George Wheeler

Appellants contend that the evidence was insufficient to support the apportionment of zero percent negligence to George Wheeler.They base their contention on his knowing where to look for the size markings on the tire and rim, and his knowing that he should not mismatch a tire and rim, that he should not inflate a tire over forty psi to seat it on the rim, and that if the bead of the tire was not seated properly at twenty psi, he should deflate and remount the tire.They assert he needed no warning to tell him not to mismatch a tire and rim.

A jury's apportionment of negligence will be sustained

if there is any credible evidence that supports the verdict, sufficient to remove the question from the realm of conjecture.To reverse, this court must conclude that there is such a complete failure of proof that the verdict must have been based on speculation.The reviewing court looks at the evidence in the light most favorable to sustain the verdict.Thus, when more than one inference may be drawn from the evidence presented at trial, this court is nevertheless bound to accept the inference drawn by the jury.(citations omitted).

Gonzalez v. City of Franklin, 137 Wis.2d 109, 134, 403 N.W.2d 747, 757(1987).We search the record for credible evidence to sustain the verdict, not to sustain a verdict the jury could have reached but did not.Id. at 135, 403 N.W.2d at 758.³

George testified that on the day of...