Kim Mfg., Inc. v. Superior Metal Treating, Inc., 27260
| Decision Date | 03 May 1976 |
| Docket Number | No. 27260,27260 |
| Citation | 537 S.W.2d 424 |
| Parties | KIM MANUFACTURING, INC., Respondent, v. SUPERIOR METAL TREATING, INC., Appellant. |
| Court | Missouri Court of Appeals |
Gary E. Lowe, Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, for appellant.
Ralph O. Wright, Gary W. Collins, Kansas City, for respondent.
Before TURNAGE, P.J., and WELBORN and HIGGINS, Special Judges.
Appeal from judgment for plaintiff for $5,636.75 following jury-waived trial on allegation that defendant negligently damaged certain swivels 'by incorrectly conducting the heat treatment of said swivels.' The questions are whether plaintiff made a case on the issues of negligence and proximate cause, and whether two of plaintiff's witnesses were qualified as expert witnesses to give opinions on the issue of causation. Affirmed.
Timothy P. Kimsey is the vice president of plaintiff Kim Manufacturing, Inc. He earned a Bachelor of Science degree from Regis College in 1963. His major was mathematics and he had courses in physics, science, and metallurgy. In his ten years with Kim he had worked as general plant manager and in purchasing, design, engineering, and sales. Metal is Kim's principal fabricated product, and Mr. Kimsey had to know actual physical properties of metal with respect to hardness and capacity for machining.
The subject matter of the case is a hydraulic or high-pressure swivel which Mr. Kimsey designed. It has been used in hydraulic hoses in the car-wash business since 1971. Each swivel consists of a barrel and plug manufactured from type 410 stainless steel obtained through Jorgenson Steel Company and shipped directly to Manning Metal Products for machining to a tolerance not to exceed .002 inches. Upon completion of the machining, Kim takes the parts to a heat treater for hardening. Kim had used Metallurgical, Inc., for this process in the past but, in this instance, they were overloaded. Mr. Kimsey called defendant Superior Metal Treating, Inc., and spoke to Layton Redman, its president, to determine whether Superior heat treated type 410 stainless steel. Mr. Redman replied that he was familiar with type 410 stainless steel, and they agreed that Superior would heat treat a quantity of Kim's swivels to 'maximum hardness in the range of 40 to 42' on the Rockwell C Scale. Heat treating deposits a film on the surface of the metal parts, and Mr. Kimsey explained that the next process would be to polish the parts to look nice for sale, and that they would have to fit together.
After the quantity of swivels had been heat treated by Superior, they were received by Kim for delivery to the A Luster Company for removal of 'a tightly adherent greenish-brown scale on the surface of the material so that it would look shiny and silver and would be a salable piece of merchandise.' A Luster employed an electropolishing process for this purpose which does not affect operation of the swivel. Prior to the delivery to A Luster, Junior Barber, Kim's plant manager, inspected the parts en route to A Luster and reported that they appeared different in coloration from the material that had been heat treated formerly at Metallurgical.
After the parts had been delivered to A Luster for electropolishing, the A Luster plant manager called Mr. Kimsey to report that the parts were not cleaning up properly, that there was some deep pitting on the surface of the metal, and that they would try processing them a second time to see if they would clean up. A Luster kept the parts for another week and attempted to clean them. Upon redelivery to Kim, Mr. Barber reported that they would not work, would not fit together, were too loose looked like coarse sandpaper, and were not salable.
After repeated efforts by Mr. Kimsey to talk to Mr. Redman at Superior, Superior's plant manager came by, looked at the damaged parts, and said it was not their problem.
Over defendant's objection going to Mr. Kimsey's qualification as an expert, Mr. Kimsey was permitted to and did testify that the defective condition of the swivels was caused by the heat-treating operation; that it was not caused by the electropolishing operation; that he was familiar with both operations; and that when an atmosphere in a furnace is not properly balanced you get a pitting and scaling on the surface of the heat-treated material; that in electropolishing, you cannot polish down in the bore of the parts because there is no way to get in there to polish it, and that physical examination of the parts satisfied him the cause of the damaged condition was a defective heat-treating operation.
Arthur Manning, Jr., of Manning Metal Products was familiar with the machining they did for Kim on the type 410 stainless steel obtained by Kim from Jorgenson Steel Company. He had been with the company for over 20 years, had worked with metals for about 80% of the time, was a member of the Society of Metal Engineers and was familiar with the processing of Kim's swivels from manufacture through the heat treatment and electropolishing processes. Over defendant's objection that Mr. Manning was not qualified as an expert, he was permitted to and did testify that the swivels were damaged because
On cross-examination, Mr. Manning testified that the defects could have been caused by both the electropolishing process and the heat-treating process, 'but I believe it was caused by heat-treating because the electro thing--I don't believe it would change the dimensions. * * * they left it in the furnace too long.'
Junior Barber, shop superintendent at Kim, received the alleged defectively heat-treated materials from Superior and delivered them to A Luster, noted the discoloration in comparison to similar parts he had seen after heat treating by other companies, and reported his observation to Mr. Kimsey.
Gordon E. Gross, a physicist and manager of the material services section at Midwest Research Institute, gave his expert opinion that the defective condition of the swivels in question was caused
On cross-examination, Mr. Gross testified, ...
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