Opinion
November 10, 1954 —
December 7, 1954.
APPEALS from an order of March 8, 1954, setting aside a judgment entered by the clerk on February 26, 1954, and ordering entry of a judgment signed by the court on December 10, 1953; and from the judgment entered on March 22, 1954, pursuant to the order. HERBERT E. BUNDE, Circuit Judge. Order reversed; the judgment entered pursuant to said order is vacated and the judgment of February 26, 1954, entered by the clerk is reinstated and affirmed.
For the appellant Edward C. Fonferek there was a brief by Lehner Lehner of Princeton, and oral argument by Philip Lehner.
For the appellant West Bend Mutual Fire Insurance Company there was a brief by O'Meara O'Meara of West Bend, and oral argument by Thomas O'Meara.
For the respondent there was a brief by Brazeau Brazeau of Wisconsin Rapids, and oral argument by Richard S. Brazeau.
These are two actions which were consolidated for trial. One is by plaintiff Edward C. Fonferek against defendant Wisconsin Rapids Gas Electric Company based on breach of warranty to recover the purchase price paid for a gas-heating system which is alleged to have been unfit for the purpose for which it was purchased. The other action is by the plaintiff West Bend Mutual Fire Insurance Company against the same defendant upon a subrogation claim arising out of the loss sustained by Fonferek, its insured, caused by smoke damage to the insured's dwelling, store, and merchandise allegedly due to improper installation of the gas appliances by defendant. Upon a special verdict the jury found there was no breach of warranty and that the contract between the parties did not require installation of the system by defendant.
The verdict was filed October 20, 1953. On December 10, 1953, a judgment for the defendant with costs was signed by the trial court but it was not filed. On February 26, 1954, at the request of counsel for plaintiff Insurance Company, the clerk of court entered judgment on the verdict without costs under sec. 270.66, Stats., dismissing plaintiffs' complaints. On March 8, 1954, the court set aside the judgment entered by the clerk and ordered entry of the judgment signed December 10, 1953, which judgment was entered March 22, 1954. From the order of March 8, 1954, and the judgment entered pursuant thereto, plaintiffs appeal.
Plaintiff Fonferek, engaged in the clothing business in Wautoma, owns a store property with two apartments on the second floor. Early in 1952 he commenced remodeling the building and at this time contracted with the defendant company for the purchase of four gas-heating units. Inserted in writing on one of the contracts was the provision "customer will install heating equipment." Upon delivery defendant's agents left one Bryant heater in the store downstairs and carried upstairs two panelray heaters and venting material, taking back one heater for the downstairs which plaintiff refused. Defendant's agents did not uncrate the units.
Plaintiff's carpenters hung the Bryant heater in the store, cut the necessary holes in the wall and installed a vent or stack purchased locally by the plaintiff. They also cut the holes in the walls of the upstairs apartments for the panelray units and installed the venting material supplied by the defendant for these units.
Defendant's service man, Irving Schmick, who had delivered the equipment, testified that he neither gave the carpenters instructions as to installation nor assisted them. He came back to set the tank for the propane gas and run the lines and connections to the appliances. The Bryant heater downstairs was already in place. The vents for the upstairs units were in place; he set the heaters into the wall as prepared by the carpenters and hooked on the gas lines. When Schmick finished making the connections he tested the system for leaks and found none. He testified the units were operating properly. Later, when the downstairs thermostat had arrived, he went back to hook it up, and again checked all the units and adjusted them so they burned a proper flame.
In September, after the installation was complete, Mr. McKay, the salesman, checked the system and found everything satisfactory. Plaintiff countersigned the check sheet upon which McKay detailed the results of his inspection.
In November plaintiff complained that the Bryant heater was sooting. Defendant sent Edward Beardsley, its head service and installation man, who cleaned out the burner and readjusted it. It was on November 28th that the sooting damage occurred for which plaintiff received payment by the West Bend Mutual Fire Insurance Company.
In the early part of December Jack Peters, superintendent of the defendant company, answered a complaint by the plaintiff regarding one of the upstairs units and upon inspection found there was a downdraft which caused improper combustion and soot. He also checked the Bryant heater and found it was properly adjusted. It was his opinion that the difficulty would be corrected by extending the vents. Plaintiff testified that thereafter he had the vents extended but there was no improvement.
On December 19th Beardsley made another call in an attempt to correct the sooting in the Bryant heater by changing a valve, but plaintiff did not allow him to do the work. Later he called again and plaintiff told him to remove everything and take it out.
On January 12, 1953, the president of the defendant company advised plaintiff by letter that the downdraft condition could be corrected by the installation of a swinging hood on the vents, but plaintiff did not follow the suggestion. He caused the system to be removed, tendered return of the property and sued for the recovery of the purchase price, alleging breach of warranty of suitability and fitness for the purpose for which it was purchased.
Further facts will be stated in the opinion.
Fonferek's action is based upon alleged breach of warranty. The jury found that the goods sold by defendant were reasonably fit for the particular purpose for which they were required by the plaintiff. This finding is supported by the testimony of plaintiff's witness, C. F. John, state inspector for the industrial commission, who stated that the Bryant heater was an approved appliance and adequate for the purpose for which it was designed. He testified that the upstairs panelray unit complained of was damaged when he inspected it on January 19, 1953, but the record is devoid of any evidence as to when or by whom it was damaged. Fonferek admitted that if the heating system had operated properly, it would have been suitable.
The complaint of the Insurance Company alleges acts of negligence on the part of defendant with respect to the installation of the gas appliances. The jury found that under the agreement between the parties the defendant was not required to install the equipment. It could hardly have found otherwise. The written contract in evidence clearly states "customer will install heating equipment," and there was sufficient evidence presented to the effect that plaintiff's agents did in fact install the equipment, that defendant's employees simply made the necessary connections between the appliances and the gas lines.
In our opinion the findings of the jury are amply supported by the evidence.
The plaintiff Insurance Company contends that the special verdict should have contained the question whether the defendant was negligent in the manner in which it adjusted or regulated the heaters. Such a question would have required speculation on the part of the jury since the testimony of Mr. John and of George Fiedler, an expert witness of the defendant, was to the effect that the condition which caused the damage by smoke or soot could be due either to improper regulation or to improper venting. One such cause being actionable and the other nonactionable, the jury could not be allowed to guess which was responsible for the damages. In any event, the complaint of the Insurance Company alleged acts of negligence in installation, not regulation, and no attempt was made to amend its complaint.
It is also urged that the court should have submitted a question whether the heater in the upstairs apartment was damaged or in a defective condition. As noted above, there is nothing in the record to show that this unit was in a defective condition when delivered by the defendant. There is no testimony as to when or by whom it was uncrated or what its condition was upon delivery.
Plaintiffs cite a number of cases to the effect that a gas company is held to a high degree of care in supplying gas to its customers in that, upon notice that gas is escaping from fixtures into the building, it becomes the company's duty to shut off the gas supply until further leakage can be prevented. These cases have no applicability here. There is no evidence of escaping gas except the statement of Mr. John that there was gas leakage from the upstairs heater on January 19, 1953. This was some time after Fonferek had refused to permit defendant's employees access to the heating system. The complaints made by plaintiff to defendant from the time the system was turned on in September, 1952, were of the heaters smoking and sooting. There appears to have been no attempt by plaintiff's on the trial to show that there was any gas leakage. On the other hand, both Schmick and McKay testified that they checked the system for such leakage and found none.
Briefs and oral argument of the parties present the question whether Fonferek failed to comply with the statutory requirements in bringing his action for breach of warranty, but it is unnecessary to pass upon the question. We have determined that the jury's finding of no breach of warranty must stand.
There remains the question respecting taxation of costs. The record shows that the verdict was filed October 20, 1953; the decision on motions after verdict made by the trial court on December 10, 1953, was filed the following day; the order for judgment and the judgment in favor of defendant and for costs were signed by the court on December 10th but were not filed until March 22, 1954. On February 26, 1954, the clerk of court, at the instance of counsel for the plaintiff Insurance Company, entered judgment without costs pursuant to sec. 270.66, Stats. Defendant thereafter brought a motion to show cause why the judgment of February 26th should not be set aside and upon hearing the trial court set aside such judgment and ordered the entry of the judgment dated December 10, 1953.
Defendant argues that the clerk may not enter judgment while a judicial function, such as decision on motions after verdict, remains to be performed. There is no question that the decision upon motions after verdict was filed on December 11, 1953. We do not consider the fact that exceptions were taken to certain items on defendant's original bill of costs justified the failure to timely file the judgment of December 10, 1953. The trial court erred in making the order of March 8, 1954, and the judgment of February 26, 1954, must be reinstated. By the Court. — The order appealed from is reversed; the judgment entered March 22, 1954, is set aside and the judgment entered February 26, 1954, is reinstated and affirmed. The parties will pay their own costs on appeal; appellants to pay clerk's fees.