Hale v. Advance Abrasives Co.

• Decision Date: 03 March 1975
• Docket Number: No. KCD,KCD
• Parties: Robert Owen HALE, Appellant, v. ADVANCE ABRASIVES COMPANY et al., Respondents. 26758.
• Court: Missouri Court of Appeals

Page 656

520 S.W.2d 656

Robert Owen HALE, Appellant, v. ADVANCE ABRASIVES COMPANY et al., Respondents.

No. KCD 26758.

Missouri Court of Appeals, Kansas City District.

March 3, 1975.

Theodore M. Kranitz, Kranitz & Kranitz, Wendell J. Koerner, Jr., Brown, Douglas & Brown, St. Joseph, for appellant.

Joseph A. Sherman, Robert K. Ball II, Jackson & Sherman, Kansas City, for respondents.

Before SWOFFORD, P.J., and WELBORN and HIGGINS, Special Judges.

ROBERT R. WELBORN, Special Judge.

Action for personal injuries sustained by Robert Owen Hale when a grinding wheel he was using in his employment exploded. Hale sued the manufacturer of the grinding wheel, Advance Abrasives Company, and E. T. Scahill Co., Inc., the sales agent through which the employer, St. Joseph Structural Steel Co., purchased the wheel. The petition sought damages of $100,000. A jury returned a verdict for both defendants. After his motion for new trial had been overruled, plaintiff appealed.

Appellant Hale was employed by St. Joseph Structural Steel Co. in January, 1970, primarily as a spary painter. He did other work for St. Joseph when not working as a painter, including operation of grinding equipment. He had experience in such work before his employment at St. Joseph. On March 4, 1970, at around 4:00 P.M., his foreman told him to use a grinder on a concrete form. Hale went to the form to use the machine lying there which had been used by another employee earlier in the day.

The grinder power unit was an Aro pneumatic hand tool, operated off an air line supplied by compressors elsewhere in the plant. The grinder wheel was a 'Sparky A--27 Type,' manufactured by Advance Abrasives Company. St. Joseph had ordered the wheel along with others through E. T. Scahill Co., Inc. Advance had shipped the wheel directly to St. Joseph.

Appellant described the incident which resulted in his injury as follows: 'I turned it on. (When I turned it on), it seemed to me like it vibrated or something. Anyway, it didn't act like it was right, so I reached to shut it off and at that time it was too late. The darn thing just flew apart. It seemed like for some reason the whole thing was vibrating or going fast or something. I realized it wasn't working right, so I reached to shut it off but by that time it already exploded and hit me in the knee, but I did shut it off.' In the current posture of the case, the nature of the injuries is not important.

On March 23, 1970, the incident involving Mr. Hale was discussed in a telphone conversation between Mr. Everett L. Thomas, St. Joseph purchasing agent, and Mr. Naseem Akhter Ansari, president of Advance which was located in Minneapolis. According to Thomas, Ansari said that his company had received a batch of 'bad' cryolite, a basic filler material used in manufacturing grinding wheels. According to Thomas, Ansari 'seemed to lay (the trouble with the wheels) on that.'

Appellant's petition for damages for personal injury sounded in strict liability for tort. It alleged that the grinding wheel sold by defendants was defective and dangerous when put to the use to which defendants reasonably anticipated it would be put. The case was submitted to the jury on that theory, the verdict-directing instruction against each defendant being in the form of MAI No. 25.04. A 'contributory fault' instruction was offered and given on behalf of defendants. The jury returned a verdict in favor of both defendants. Plaintiff's motion for new trial was overruled and he appealed.

In this court, appellant attacks the correctness of the contributory fault instruction. Respondents defend that instruction, but also contend that plaintiff made no submissible case, so that any error in the attacked instruction could not have been prejudicial.

Respondents first contend that appellant failed to prove that there was a defect in the grinding wheel when it was manufactured which caused it to disintegrate.

The remnants of the wheel involved were produced in evidence, but there was no direct evidence of the defect which appellant claimed caused it to disintegrate. The appellant's evidence was aimed to show circumstantially that the bad cryolite was the defect involved. Respondents here argue that appellant's own testimony showed that the speed of the grinder caused its disintegration. Appellant and his witnesses acknowledged that excessive speed of operation could cause a grinding wheel to disintegrate. Respondents...