Hays v. Western Auto Supply Co.
| Decision Date | 12 September 1966 |
| Docket Number | No. 1,1 |
| Citation | 405 S.W.2d 877 |
| Parties | Frederick HAYS, a Minor by His Father and Next Friend Paul R. Hays, Appellant, v. WESTERN AUTO SUPPLY COMPANY, a Corporation, Respondent. No 51586 |
| Court | Missouri Supreme Court |
Mitchell & Meise, John W. Mitchell, Clyde G. Meise, Kansas City, Mo., and George M. Hare, Independence, Richard B. Globus, Kansas City, of counsel, for appellant.
James W. Benjamin, Kenneth E. Jones, Rogers, Field & Gentry, Kansas City, for respondent.
HOUSER, Commissioner.
Frederick Hays, proceeding by his father and next friend, sued Western Auto Supply Company, a corporation, and H. Lee and Reba Van Cleave, for $75,000 damages for personal injuries. A riding power mower, sold by Western at one of its retail stores, purchased and owned by H. Lee Van Cleave, and operated by Jimmy, the 8-year-old brother of Frederick Hays, backed up against plaintiff, who was between 2 and 3 years of age, knocked him down and ran over his heel, foot, leg, groin and side, inflicting serious cuts and injuries. At the close of plaintiff's evidence the court sustained motions for directed verdicts filed by Mrs. Van Cleave and Western and overruled Mr. Van Cleave's motion for a directed verdict. The case against Mr. Van Cleave apparently was then settled. Judgment was entered against plaintiff as to all three defendants. Plaintiff has appealed from the action of the court in sustaining the separate motion of Western for a directed verdict. No appeal has been taken with respect to the rulings or judgment entered in favor of defendants Van Cleave.
The negligence charged against the retailer, Western Auto Supply Company, was that of selling the power mower to the public and to the Van Cleaves without adequate warning to the purchasers of the highly dangerous qualities of the machine, and that the machine was improperly designed in that it was built omitting guards around the blade, particularly in the rear section, thereby exposing the unguarded blade and causing or contributing to cause plaintiff's injury. Western was further charged with having failed to take the highest degree of care to protect plaintiff when it knew or should have known that a machine so improperly designed and constructed was inherently dangerous and that such improper design and construction might well result in serious injuries to a person or persons and more specifically to plaintiff.
The Hays and the Van Cleaves families were next-door neighbors. Mr. Van Cleave bought the machine in question for his 9-year-old son Richard to operate. While Richard was mowing his father's lawn Jimmy Hays, 8 years old, approached Richard to show him something. Richard stopped the machine. In the course of their talk Jimmy prevailed upon Richard to allow Jimmy to drive the machine. Jimmy got on the machine, mowed a short distance, put it in reverse and began backing. At that time Jimmy's little brother, over 2 but not yet 3 years old, arrived on the scene unnoticed, and was at the rear of the machine as it was traveling backwards. The machine backed into Freddie and Freddie was knocked down. The rear of the machine passed over Freddie and caught his left foot, etc. in the whirling blade.
Plaintiff's Exhibit 8, reproduced here, demonstrates the construction of the machine.
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
It was equipped with a 4 1/2 h.p. gasoline engine which delivered power to the rear wheels by means of a chain drive. The motor was mounted about the center. The steering mechanism was in front of and the operator's seat was behind the motor. The operator's feet rested on a metal housing known as the blade guard or deck. A 24-inch cutting blade, connected to the motor, revolved parallel to the ground 1 3/4 inches below the deck. The blade was set to revolve on a plane 3 inches above the ground. The deck enclosed the blade on the front, left and right sides of the machine, except for an opening on the right side to permit cut grass to be ejected. At the rear the deck or blade guard did not come down over the blade, but left it exposed.
Plaintiff offered expert evidence as follows: The object of a guard is safety; to guard against persons 'who might get their foot down there.' As long as 'your blade is inside of the housing, not below it or behind it or in front of it' a guard which is part of the housing 'does the job'--'not 100%'--but it is effective. The blade and deck were not contoured to each other all the way around. At the back there were square corners. When the blade was positioned parallel with the front and back wheels 3/4 inch of the tip of the blade extended beyond the back end of the deck, toward the rear axle, and was exposed from the rear, with 'no guard at all' covering the blade at that place. When in that position the tip of the blade would be 12 to 14 inches forward from the rear of the machine, on a line ahead of the front of the rear wheels and about even with the operator's seat. The tip of the blade was approximately 1/4 inch below the blade guard 'at all times,' so that the front was partially exposed and the rear completely exposed. A tubular tow-hitch bar extended across the back of the machine, almost as wide and at the same level as the rear axle. Neither an adult nor a child could get his foot or leg in contact with the revolving blade at the rear of the mower unless he fell down or was knocked down at the rear of the machine and the machine thereafter backed up 12 to 14 inches to make the contact.
Plaintiff-appellant's first point is that the court erred in not allowing his expert witnesses 'to testify to all of the defects of said riding power lawn mower.' Objections were sustained to questions asked plaintiff's expert witnesses (1) whether the blade was covered at the front by the front part of the deck or blade guard, (2) whether in the expert's opinion the injury would have occurred if the blade had been properly guarded and covered in the rear, and (3) whether the machine as constructed was reasonably safe. When objections to these questions were sustained plaintiff made no offer of proof and failed to advise the trial court what the expert's testimony would have been if permitted to testify, or that the evidence would have been favorable to plaintiff. Nothing is preserved for appellate review when a court rejects evidence, in the absence of an offer of proof, Howe v. St. Louis Union Trust Co., Mo.Sup., 392 S.W.2d 625; Eickmann v. St. Louis Public Service Co., Mo.Sup., 323 S.W.2d 802; 2 A Missouri Digest, Appeal and Error, k205, except in instances where the plain error rule, Civil Rule 79.04, V.A.M.R. is applicable. See Smith v. J. J. Newberry Co., Mo.App., 395 S.W.2d 472. Under the facts in this case there is no occasion to invoke the plain error rule.
Plaintiff's second point is that the court erred in sustaining Western's motion for a directed verdict; that plaintiff made a submissible case both on negligence and breach of warranty of merchantability because he proved by his expert witnesses that the machine was improperly designed and constructed and had latent dangerous defects. It is argued that the evidence showed that the blade was not shielded in the back; that the nonshielding of the blade--the lack of a proper covering for the whirling blade--was not readily apparent or easily discoverable by a purchaser in the ordinary course of business; that it was not an obvious defect, but a hidden, latent defect resulting from an improper design, making the machine 'imminently dangerous' so that 'any person coming close to the machine for any kind of contact would likely have been cut, maimed or otherwise injured.' The nub of plaintiff's theory of recovery is that of deceit: that the machine is so constructed that there appears to be a guard around the blade when in fact there is not.
Defendant is the supplier, the retail seller; not the manufacturer. Defendant appears to have been a mere conduit for a manufacturer whose general reputation for reliability has not been attacked. Plaintiff is not the purchaser or a member of the purchaser's family. The purchaser was not the operator, nor was any member of the purchaser's family operating the machine, nor was the operator authorized by the purchaser to operate it. The 8-year-old operator had been allowed to use the machine by the purchaser's 9-year-old son, contrary to the purchaser's instructions. The person injured was the operator's 2- or 3-year-old brother. The defense is that there was no negligence and no showing of any defect which was a proximate cause of the accident.
On the question of negligence: Plaintiff charges that defendant was negligent in selling and putting into commerce a machine megligently designed with a latent defect--improper shielding. The difficulty with this theory of liability,...
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