Probst v. Heisinger Motor Co.

• Decision Date: 01 April 1929
• Docket Number: No. 16580.,16580.
• Citation: Probst v. Heisinger Motor Co., 16 S.W.2d 1005 (Mo. App. 1929)
• Parties: PROBST v. HEISINGER MOTOR CO.
• Court: Missouri Court of Appeals

16 S.W.2d 1005

PROBST v. HEISINGER MOTOR CO.

No. 16580.

Kansas City Court of Appeals. Missouri.

April 1, 1929.

Rehearing Denied April 29, 1929.

Appeal from Circuit Court, Cole County; H. J. Westhues, Judge.

"Not to be officially published."

Action by Alfred J. Probst against the Heisinger Motor Company. Judgment for plaintiff, and defendant appeals. Reversed.

Casper S. Yost, Jr., of Kansas City, and Hensley, Allen & Marsalek, of St. Louis, for appellant.

Irwin & Bushman and Oscar G. Williams, all of Jefferson City, for respondent.

BARNETT, C.

This is a suit for personal injuries. Plaintiff was an automobile mechanic in the defendant's garage, where he had worked for about two years. He was engaged in adjusting a magneto on an automobile, and in the course of the work he was hammering upon a soft piece of iron which served as a clamp over the magneto. For this purpose he was using a hammer, the face of which was chipped. There was evidence that the soft iron upon which he was hammering would not chip. Just as he struck a blow a piece of iron or steel struck him in the eye, as a result of which the use of the eye has been greatly impaired. Both the hammer, and the piece of metal taken from plaintiff's eye, were introduced in evidence, and thus the jury had an opportunity to compare the metals. We copy the following from the respondent's statement, because we think it fairly summarizes the evidence:

"The hammer was among a number, some 15, furnished by the defendant and was picked up by plaintiff in the ordinary course of his work without noticing the condition of the hammer. The evidence was that the defendant had furnished some hammers that were unchipped after long and hard usage; that some hammers had been bought from Fred Campbell Auto Supply Company, a reputable dealer in such articles; that this hammer was of the ordinary kind that comes with tools supplied to an automobile. The testimony of the plaintiff was that he had had 8 years' experience as a mechanic, had handled hammers, seen hammers, and worked with hammers, and could tell from his experience as a mechanic whether or not the hammer used was a high-grade hammer or a low-grade. He testified that from his experience a high-grade hammer does not chip. Plaintiff testified that the sliver of steel that struck him in the eye came off the hammer. The defendant objected to his testifying to this, asserting that any statement by the witness would be a conclusion; but the plaintiff had been examined as to the facts attending his injury, and on cross-examination stated he did not see the piece come off the hammer—that nobody could see that."

The plaintiff introduced evidence to the effect that the men did not have time to look over the hammers and pick out the best ones; that they just took what tools they wanted and went to work; that the usual and ordinary way was to select the nearest tools. There was a verdict for plaintiff. A motion for new trial was filed and overruled, and defendant appealed.

Opinion.

Appellant contends that plaintiff selected the hammer he was using from a large number available to him in defendant's shop, that no one directed him to use this particular hammer, and that therefore his allegation that defendant negligently furnished him a hammer that was insufficient for the work is totally without support in the evidence. This court decided a similar question on March 4, 1929, in the case of Katherine King v. C. F. Terry et al., 14 S.W.(2d) 969. In that case an experienced plumber's laborer was digging a sewer ditch. No foreman was present, and the laborer prosecuted the work in his own way. He had asked for material to shore the ditch, and the master had sent out a large amount of material, some of which was suited for the purpose and some of which was not. The laborer was killed when a part of the ditch caved in. This court held that the master did not fail to furnish suitable material if he sent material to the workman, some of which was suitable and some of which was unsuitable; that since the whole project was under the direction and control of the servant, the duty was upon him to select from the material that which was suitable for shoring at any particular point. In the case of Forbes v. Dunnavant, 198 Mo. 193, 95 S. W. 934, the Supreme Court held that a master was not liable for failing to furnish suitable material to a carpenter where a mass of material was furnished by the master for the use of the servant, some of which was suitable for the work at hand; that it was the servant and not the master that selected the defective board which caused the injury. The court held that under modern conditions the master may carry on a business over a vast field, with thousands of employés in different branches of labor, widely separated, and his servants may never come under his actual eye; that the servant is presumed to possess, not only common sense, but certain knowledge peculiar to his trade or art; that the master may be presumed to hire, not only the bodily services of the servant (his hands, eyes, ears, muscles, and legs), but the skill and knowledge pertaining to the servant's art or trade; that the master may therefore trust the servant to perform the intermediate, the ordinary and simple duties incident to his employment and resting upon his knowledge and skill; that a carpenter knows a good board as well as his master and in many cases better, and therefore the master need not be present in person or constructively at every precise moment of time to select and deliver to the carpenter a sound board so that the carpenter will not hurt himself, but the master may trust the carpenter to select a good board from the mass of raw material.

In Modlagl v. Iron & Foundry Co., ...