Wussow v. Commercial Mechanisms, Inc.
| Decision Date | 11 August 1980 |
| Docket Number | No. 77-726,77-726 |
| Citation | 97 Wis.2d 136,293 N.W.2d 897 |
| Parties | Ronald V. WUSSOW, Plaintiff-Respondent-Petitioner, v. COMMERCIAL MECHANISMS, INC., and Advance Machine Company, Defendants- Appellants. |
| Court | Wisconsin Supreme Court |
John Bosshard and Bosshard, Sundet & Associates, La Crosse, and Peter S. Hendrixson, Darron C. Knutson and Dorsey, Windhorst, Hannaford, Whitney & Halladay, Minneapolis, Minn., for defendants-appellants.
Robert D. Johns, Jr. (argued), and Johns, Flaherty & Gillette, S. C., La Crosse, on brief, for plaintiff-respondent-petitioner.
This review poses the principal question of whether, in a products liability case, the matter may proceed to trial on the question of punitive damages after compensatory damages have been settled and the claims for those damages dismissed. We conclude, under the facts of this case, that the trial for punitive damages was appropriate despite the prior settlement of the compensatory damages.
The defendants claim that the amendment of the complaint to assert punitive damages came too late to avoid the bar of the statute of limitations. We conclude that the limitations did not operate to bar the claim because the newly asserted remedy, punitive damages, related back to the original cause of action arising out of the injuries sustained on July 3, 1972. The newly asserted claim for punitive damages was ". . . connected with the subject of the action upon which the original pleading (was) based." Sec. 269.44, Stats. (1973).
Additionally, the defendants also claim that the evidence was not sufficient to award punitive damages against either Commercial Mechanisms, Inc., or Advance Machine Company. We conclude that the evidence was sufficient to sustain the jury award, that the trial court did not commit error in the admission of evidence, and that a new trial is not justified.
We reverse the court of appeals, 90 Wis.2d 136, 279 N.W.2d 503, and affirm the judgments of the circuit court.
The action arises out of an injury sustained by fourteen-year-old Ronald Wussow on July 3, 1972. Wussow, while playing in a public park in the Village of Bangor, Wisconsin, entered an unlocked tool and equipment shed, where he saw an "OLY" pitching machine owned and used by the school district as a training aid for its baseball teams. The machine was equipped with an unguarded pitching arm used for throwing baseballs for batting practice. Although the electric machine was not plugged in at the time of the accident, it was left in a cocked or energized position. When Wussow bumped one of the pulley wheels, the pitching arm struck him on the head. It struck with such force that the pitching arm crushed Wussow's skull and impinged upon his brain. The pitching arm "stuck" in Wussow's head. Needless to say, he sustained severe personal injuries.
The pitching machine was manufactured by Commercial Mechanisms, Inc. (CMI) and was sold to Athlone Industries, Inc. (Dudley Sports Co. Division), which in turn sold the machine to the Bangor Area School District on or about June 1, 1970. About a year after the sale to the school district, but a year before Wussow was injured, Advance Machine Co. (Advance) acquired CMI by purchasing the assets of CMI's sole stockholder.
On September 23, 1974, Wussow and his parents commenced suit against the village, the school district, and the Dudley division of Athlone. The complaint against the municipalities and their employees alleged negligence in failing to lock the shed and to warn of the dangerousness of the machine. In respect to Dudley, it was alleged that the pitching machine was negligently designed and manufactured and that there was inadequate warning of its dangers. Damages were sought in the sum of $840,000.
Subsequently, in 1975, the complaint was amended by dropping Dudley as a party and adding Athlone and its insurer and the insurers of the village and of the school district. It was alleged that the pitching machine was unreasonably dangerous and defective. Again, only compensatory damages were sought.
In April 1975, a second amended complaint added CMI, Advance, and their insurers as parties.
On June 16, 1976, almost four years after Wussow's injury, a third amended complaint was filed, which included for the first time a demand for punitive damages of $1,000,000 against CMI, Advance, and Athlone.
Four days later, the defendants answered the third amended complaint, denying its allegations and alleging contributory negligence. They also asserted that the portion of the complaint asking for punitive damages failed to state a claim upon which relief could be granted. About a month later, CMI and Advance amended their answers, asserting that the plaintiff's claim for punitive damages was barred by the three year statute of limitations. Sec. 893.205(1), Stats. Defendants asserted that the punitive damages demand in the third amended complaint was the assertion of a new cause of action and, therefore, as a matter of law there could be no relation back to the original complaint to circumvent the bar of the statute of limitations. Nothing in the record indicates that the defendants asserted that there was any unfairness, prejudice, or lack of notice as the result of the belated assertion of punitive damages. Rather, they rested upon the defense that there can be no relation back where a new cause of action is asserted. The trial court held that the amendment related back to the original complaint and overruled the statute of limitations defense. Defendants do not contend that the court abused its discretion by so deciding they take the position that the ruling was erroneous as a matter of law.
For reasons not explained in the record, the claim for compensatory damages was settled on June 30, 1977. An order was entered pursuant to stipulation dismissing "all of the Plaintiffs' causes of action, excepting only the Plaintiffs' cause of action for punitive damages against Commercial Mechanisms, Inc. and Advance Machinery Company." Defendants' counsel acknowledge that compensatory damages for actual injuries were paid Wussow as the result of this stipulation.
After this settlement, defendants moved to dismiss the punitive damages claim because of the running of the statute of limitations (sec. 893.205(1), Stats.) and because the complaint failed to state a claim upon which relief could be granted. These motions were denied by the court, and the remainder of the case was scheduled for trial. At a pre-trial conference, plaintiff suggested bifurcating the trial on the remaining issues. Plaintiff offered to prove negligence and that the pitching machine was dangerously defective in a proceeding separated from the portion of the trial intended to provide a basis for punitive damages. The defendants did not agree to that proposal.
Wussow's parents were dismissed as plaintiffs upon the court's conclusion that only a person sustaining physical injury can assert a claim for punitive damages. That ruling is not contested.
The jury returned a verdict finding that the pitching machine was defective in design and unreasonably dangerous, that the village and the school district were negligent, and that the defect in the machine and the negligence of the municipalities were causes of Wussow's injuries. It also found Wussow contributorily negligent and apportioned the negligence in the following manner: The pitching machine 70 percent, the village 10 percent, the school district 10 percent, and Wussow 10 percent.
In answer to a separate question, the court, without objection insofar as the record reveals, found that Ronald Wussow sustained actual damages.
The jury assessed punitive damages against CMI for $50,000 and against Advance for $20,000.
After the court's order denying defendants' motions after verdict, judgments were entered on the verdict on December 29, 1977. An appeal followed.
The defendants' appeal was disposed of by the court of appeals on a single issue. That court reversed the trial court, concluding that, because "plaintiff had no cause of action for compensatory damages at the time of trial against CMI or Advance, he may not be awarded punitive damages against those defendants." 90 Wis.2d 136, 141, 279 N.W.2d 503, 506 (Ct.App., 1979). Were this opinion supportable, it would resolve the entire dispute. We conclude, however, that, on the facts of this case, the court of appeals was in error. Before discussing the correctness of the court of appeals' rationale, it must first be determined whether the interposition of the claim for punitive damages came too late to void the bar of sec. 893.205, Stats. 1 If the claim for punitive damages came too late, we need not determine the correctness of the court of appeals' rationale.
Determining whether the demand for punitive damages relates back to the original filing and thus avoids the bar of the statute of limitations basically involves defining what is a cause of action. The defendants' argument is premised on the assumption that each separate demand arising out of a single injurious occurrence constitutes a separate cause of action. This is incorrect.
As all the parties agree, the statute in respect to relation back of amendments applicable to this case is sec. 269.44, Stats. (1973). Wussow's action was commenced on September 23, 1974, for injuries that were sustained on July 3, 1972. The third amended complaint, alleging punitive damages, was filed on June 16, 1976, almost four years after the accident. Clearly, had the third amended complaint been the initial filing, the action would be barred by the statute of limitations. The defendants concede that, were the revised statute, sec. 802.09(3) (1975), applicable to this case, the doctrine of relation back would probably operate. We conclude that the 1973 statute permits, with at least equal clarity, the relation back of the amendment...
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...be sought or awarded in the same cause of action. They are merely alternative or concomitant remedies. Wussow v. Commercial Mechanisms, Inc., 97 Wis. 2d 136, 152, 293 N.W.2d 897 (1980). The apparent goal of the plaintiffs in the underlying action was the desegregation of the Milwaukee area ......
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