Swindler v. Butler Mfg. Co.

• Decision Date: 08 April 1968
• Docket Number: No. 52985,No. 1,52985,1
• Citation: Swindler v. Butler Mfg. Co., 426 S.W.2d 78 (Mo. 1968)
• Parties: Leslie SWINDLER, Appellant, v. BUTLER MANUFACTURING COMPANY, a Corporation, Respondent
• Court: Missouri Supreme Court

Page 78

426 S.W.2d 78

Leslie SWINDLER, Appellant, v. BUTLER MANUFACTURING COMPANY, a Corporation, Respondent.

No. 52985.

Supreme Court of Missouri, Division No. 1.

April 8, 1968.

Edward L. Simmons, and Russell D. Jacobson, Kansas City, for appellant.

Gene C. Morris, of Rogers, Field & Gentry, Kansas City, for respondent.

WELBORN, Commissioner.

Appeal by plaintiff from judgment in favor of defendant at close of plaintiff's opening statement on trial for $50,000 damages for personal injuries. A prior appeal was found to be premature because the judgment appealed from did not dispose of all questions and parties. See Swindler v. Gross, Mo.Sup., 395 S.W.2d 109. The claim against codefendant Gross has now been dismissed and the issue between plaintiff and defendant Butler is now properly before us.

This cause of action arose out of injuries sustained by appellant Swindler while employed on the Gross farm in DeKalb County. On October 21, 1958, Swindler fell when a ladder on which he was standing slipped. He had climbed the ladder to observe the level of the contents of a bin into which feed processed on a Select-O-Mix Grinder was being conveyed. The petition charged negligence against the Grosses in failing to provide a safe place to work in that the floor in which the ladder had been placed was slick concrete, made more slippery by dust and feed particles which the grinding process produced. The petition also charged that the ladder was worn, cracked and broken, and otherwise unsafe.

The petition alleged that Butler was 'engaged in the business of manufacturing machinery and other products, and specifically engaged in the manufacture of a machine designated by said defendant as a Select-O-Mix Grinder, which machine was offered for sale to members of the public by the defendant * * *.'

Paragraph 6 of the petition stated plaintiff's claim against Butler as follows:

'6. States that defendant Butler Manufacturing Company was negligent in the manufacture and design of the Select-O-Mix Grinder in failing to equip said machine with a safe place for workmen to stand while operating said machine, and that defendant knew, or in the exercise of ordinary care should have known, that workmen would be working in close proximity to said machine and that such workmen would be likely to be injured, and of the dangers as aforesaid, prior to October 21, 1958, in time to have remedied said conditions; Defendant Butler Manufacturing Company was negligent in that it failed to instruct or to supply instructions to either defendants Gross and/or plaintiff herein for the installation and operation of the Select-O-Mix Grinder, and that the cause (sic) of * * * the design and manufacture of the grinder as aforesaid that such instructions were necessary in order that the installation and operation of said grinder be safely carried out, and that defendant Butler Manufacturing Company knew, or in the exercise of ordinary care should have known, that men would be working on and in close proximity to said grinder and therefore that such instructions should have been given, but that defendant Butler Manufacturing Company failed or omitted so to do.'

Butler filed a general denial to plaintiff's petition. The plaintiff propounded interrogatories to Butler. Butler's answers asserted that it sold the Select-O-Mix Grinder to the Grosses; that the grinder was ordered, at the request of Gross, from the manufacturer, Belle City Engineering Company; that it was delivered directly to Gross; that none of Butler's employees installed or assisted in the installation of the grinder and that it gave no direction or instruction regarding the installation or operation of the grinder.

In his voir dire examination, plaintiff's counsel stated that Butler 'did not manufacture but * * * sold and distributed and demonstrated a milling and grinding machine.' Butler's motion for a directed verdict on the basis of such statement alone was overruled. Thereafter, and prior to his opening statement, plaintiff asked leave to amend his petition to state in Paragraph 6 of his petition that Butler 'was negligent in the manufacture and design of the Select-O-Mix Grinder, or in selling said machine * * *.' Butler's objection to such amendment was sustained.

Plaintiff's counsel then proceeded to make his opening statement. The following references to Butler were made:

'* * * (I)n the spring of 1958 Mr. Gross installed what they called a Select-O-Mix Grinder, a machine that grinds and mixes different grains and elevates them to different bins, the bins being up overhead in the building which had been constructed for that purpose, and from these bins the ground and mixed grain comes down and goes into a wagon and it is then taken out and fed to cattle and hogs.

'Mr. Gross got this machine from Bulter Manufacturing Company here in Kansas City, Missorui. They had advertised it and displayed it and demonstrated it throughout the midwest here. I think the evidence is they showed it in Atchison, Kansas, and the Trimble-Minor farm, and places like that or of that nature. It was a new product they were selling to farmers, cattlemen and hogmen in this area. The Grosses saw it and went down there and got it and installed it. They built the building and put bins up above the machine into which the different kinds of grain was elevated by means of ducts and tubes. From these bins up above the grinder the grain would come down and mix and be ground into whatever formula was desired. They had some four tubes that would bring in four different kinds of grain which could be mixed and ground into different rations so that when they got through the grinding machine they had a ration for the cattle or other kinds of livestock.

'They installed this grinder and it is about three to four feet square and about that high (indicating), and all these pipes ran into it.

* * *

* * *

'* * * Mr. Gross had gone to the Butler and got the machine after he had seen it displayed around the area. Then he took it up and installed it. This machine was solidly built. The sides were about three foot high by three foot wide and sort of a rectangular thing. They were of solid walls. There was no mirror or glass openings so that you could tell from this machine when the grain was coming in or if one of those bins was full, or anything of that nature. Mr. Gross solved this problem by making openings where the unground grain came in three or four inches square. Mr. Gross not only had this ladder there, but instead of using a square fitting to fit over the square hole he put a round pipe into the square hole.

* * *

* * *

'This left an opening which he explained as having to leave it that way so he could see when the grain was coming down. Milo is grain that is round and hard like a ball bearing, and that spilled out onto the floor in this grinding process and the dust and the ground grain spilled out onto the floor. And that is where the ladder was set. At no time was there any other place provided for on this machine to show that the grain was moving through that thing other than these openings that were there.

* * *

* * *

'There were no openings of any kind except the openings where this raw grain comes down, where a man could see that this grinder had grain to grind, or whether a pipe was clogged, or anything. Not only that, but there was no place provided on this machine for a man to stand while he was working in this vicinity where he would be free from this dust that was bound to come out of this machine grinding grain. The machine had to be anchored to the floor and all these pipes came to it. It was anchored in the concrete floor. It was anchored in such manner that this pit, not only did it come to the west of it but it also extended along the south side of it, about half way along the south side, so you could put a ladder only at the extreme east edge of the machine. You couldn't work to the south because of the tractors coming through; and you couldn't work along the south of it because of the pit; and you couldn't work to the west of it because of the pit,--you had to have this ladder here (indicating). You couldn't have it too close to this three-foot pit because of the angle that angled it along the south side of the machine. So you are very limited there where this ladder had to be placed.

'At no time did Butler Manufacturing Company ever give anybody any instructions as to how to install this machine to provide for the safety of the people that had to use it to grind this grain. It was designed especially to grind grain which is known to have a high moisture content when it had been freshly harvested. They were bringing milo right straight in from the field. Not only that, there are vegetable oils, corn oil, and so forth,--they look dry on the outside but on the inside they have a high vegetable oil content. It is like a lubricant; they have oil and moisture in them. This machine was designed especially for this use and sold for this use. At no time did they give any instructions as to how to safely use it or install it. So that on the morning of the accident, the event in question, not only was he using this rickety ladder by this machine that had no opening to see whether or not the grain was going down, but this happened in October and they were, at the very time when Mr. Swindler was grinding, they were bringing in freshly harvested milo. Mr. Gross, the son, was actually in the field with the combine harvesting this milo that Mr. Swindler was grinding. The experts will tell us and I am sure you all know that freshly harvested grain has a larger moisture content and that one ton out of every four tons is water. That makes it extremely slick, falling out here on this slick concrete floor. This was the place Mr. Swindler was asked to grind grain in on that particular morning.

'There is another thing that the expert will explain to you, that freshly harvested milo, or any other grain,...