Vogt v. S.M. Byrne Const. Co.
| Decision Date | 05 June 1962 |
| Citation | 17 Wis.2d 96,115 N.W.2d 485 |
| Parties | Hubert William VOGT, Plaintiff-Respondent, v. S. M. BYRNE CONSTRUCTION CO., a Wis. corporation, Appellant, Frank Motola, Impleaded Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
An action by the plaintiff, Hubert William Vogt against S. M. Byrne Construction Company, the defendant, and Frank Motola, an interpleaded defendant to recover damages for personal injuries sustained on April 6, 1957, when a grinding wheel on a machine operated by Frank Motola burst. The machine was owned by the Byrne Construction Company and used by the St. Therese Parish to grind floors. Vogt, Motola and others were working gratuitously to finish the new parochial school building.
A trial was had before the court and a jury. The jury returned a special verdict finding (1) That Byrne Construction Company knew, or should have known in the exercise of reasonable care, that the grinder on which the abrasive wheel exploded, was going to be used to grind; (2) that Byrne Construction Company was negligent with respect to the manner and method with which it replaced the emery wheel on the grinder; (3) that such negligence was a cause of the injury; (4) that Frank Motola was not negligent in the manner in which he operated the grinder, and (5) that Hubert William Vogt was entitled to damages in the amount of $9,591.32. The trial court dismissed the cross-complaint against Motola. Judgment was entered on October 30, 1961, against Byrne Construction Company. The appeal is from the judgment.
Bender, Trump, Davidson & Godfrey, Milwaukee, Kneeland A. Godfrey, Milwaukee, of counsel, for appellant.
Ray T. McCann, Milwaukee, Leonard L. Loeb, Milwaukee, for counsel, for plaintiff-respondent.
Rebholz & Duffey, Milwaukee, Thomas J. Duffey, Milwaukee, of counsel, for impleaded defendant-respondent.
This case involves a typical do-it-yourself project.
The testimony showed that the grinder was kept in an unused classroom in the school building, which room was used as a toolroom. On the morning of the accident, Mr. Byrne, president of Byrne Construction Company, arrived at St. Therese bringing a grinder (not involved in the accident), at the request of Father Wilwers, a priest of the Parish. Byrne, his nephew Prasch, Father Wilwers, Motola and others then went to the toolroom and removed a different grinder from a locked cabinet. This is the grinder involved in the accident. Upon inspection, Byrne decided that this grinder would not be usable as the emery wheel was badly worn. Father Wilwers then left and returned with two grinder wheels which the testimony reveals were obtained as Army surplus items. Byrne and Father Wilwers then took the lead core from the worn wheel and put it into the new wheel furnished by Father Wilwers in order to make this wheel fit the shaft of the grinder. Since the replacement wheel was too large, the safety shield had to be removed in order to accommodate it. Byrne testified that he then spun the wheel with his hand and said to those present that the wheel would not work, that it was not safe. Prasch's testimony agreed with that of Byrne. Prasch added that Father Wilwers also turned the wheel and that Father Wilwers and Byrne decided the wheel would not work as it did not fit properly. They all left the toolroom leaving the grinder on a bench in the room.
Frank Motola, who was also present, testified that he remembered no conversation by Byrne that the grinder would not work with the replacement wheel or that it was not safe. On cross-examination Motola admitted that though he was present when the conversation occurred, that he did not remember any of what had been said.
Father Wilwers was not called upon to testify and the plaintiff Vogt was not present when Byrne and Father Wilwers worked on the grinder in the toolroom.
Byrne Construction Company contends that under these facts it cannot be held to have entered a bailor-bailee relationship with St. Therese with regard to the grinder and that even if it is assumed Byrne was a gratuitous bailor, there was no breach of any duty to the plaintiff.
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