Wallace v. Herman Body Co.

• Decision Date: 28 July 1942
• Docket Number: 37981
• Parties: Ben F. Wallace v. The Herman Body Company, a Corporation, Appellant
• Court: Missouri Supreme Court

163 S.W.2d 923

349 Mo. 1093

Ben F. Wallace v. The Herman Body Company, a Corporation, Appellant

No. 37981

Supreme Court of Missouri

July 28, 1942

Appeal from Circuit Court of City of St. Louis; Hon. William L Mason, Judge.

Affirmed.

Lee Fricke & Lee for appellant.

(1) The court overruled the demurrers and sustained the motion for a new trial for emphasis in the instructions on an erroneous conception of the law as to the liability of appellant, even if it is admitted that the liability of a manufacturer to third persons is applicable to a merchant or jobber who sells and mounts fifth wheels. Tayer v. York Ice Machinery Co., 342 Mo. 912, 119 S.W.2d 240. (2) The casualty would not have occurred except for careless inspection or operation of the tractor, and both inspection and use were in the exclusive control of respondent and his employer. Turner v. Missouri-Kansas-Texas R. Co., 346 Mo. 28, 142 S.W.2d 455. (3) Where there is no evidence that would sustain a verdict for plaintiff, a new trial should be denied plaintiff, regardless of error in defendant's instructions. United Const. Co. v. St. Louis, 334 Mo. 1006, 69 S.W.2d 639. (4) The effect of sustaining a motion for a new trial on a specific ground is to overrule the motion on all other grounds. Sakowski v. Baird, 334 Mo 951, 69 S.W.2d 649.

Clem F. Storckman and Walker & Hooker for respondent.

(1) By its failure to assign as error the court's ruling in granting of a new trial because of errors in instructions Nos. 3, 5, 6, 7, 8 and 9, the defendant waived its right to urge such point as error and abandoned the same. Kimmie v. Terminal R. Assn., 126 S.W.2d 1197, 344 Mo. 412; Herrington v. Hoey, 139 S.W.2d 477, 345 Mo. 1108. (2) There was no error in the trial court's granting a new trial because of errors in defendant's instructions Nos. 3, 5, 6, 7, 8 and 9 even though such point were not waived by defendant. Pyle v. McNeal Co., 62 S.W.2d 921; Miller v. Engle, 172 S.W. 631, 185 Mo.App. 558; Cain v. Winterstein, 128 S.W. 274, 144 Mo.App. 1; Ramp v. Met. Street Ry. Co., 114 S.W. 59, 133 Mo.App. 700; Harrington v. Dunham, 202 S.W. 1066; Licklider v. Domian, 96 S.W. 641; Oliver v. Morgan, 73 S.W.2d 993; Mitchell v. Dyer, 57 S.W.2d 1082; Reeves v. Lutz, 177 S.W. 764; Harrison v. Bence, 270 S.W. 363; Rice v. Jefferson City B. & T. Co., 216 S.W. 746; Johnson v. St. Louis & Suburban Ry. Co., 173 Mo. 307; Unterlachner v. Wells, 278 S.W. 79; Wolfson v. Cohen, 55 S.W.2d 677. (3) In reviewing a ruling on a demurrer to the evidence the appellate court must view the evidence most favorably to the plaintiff, must treat plaintiff's evidence as true, and must give the plaintiff the benefit of every reasonable inference fairly deducible from the evidence. Graves v. Mo. Pac. Ry. Co., 118 S.W.2d 787, 342 Mo. 542. (4) Plaintiff's evidence made a submissible case for the jury because, (a) The attachment of the fifth wheel to the tractor was a thing which placed life and limb in peril when negligently done and in such case the manufacturer or supplier of such unsafe device is liable to a person using the equipment. McPherson v. Buick, 111 N.E. 1050; Jacobs v. Frank Adams Electric Co., 97 S.W.2d 849; McLeod v. Linde Air Products Co., 1 S.W.2d 124; Goullon v. Ford Motor Co., 44 F.2d 310; Restatement of the Law of Torts, sec. 395, p. 1073, sec. 396, p. 1079, sec. 398, p. 1084, and sec. 400, p. 1086; 37 Michigan Law Review, p. 1, November, 1938. (b) The length of time the fifth wheel attachment was in use prior to the time the bolts broke and sheared off does not preclude recovery since the evidence shows that when the accident did occur it was the result of defendant's negligence. Devlin v. Smith, 89 N.Y. 470; Lill v. Murphy Door Bed Co., 8 N.E.2d 714, 290 Ill.App. 328; Pierce v. C. H. Bidwell Thresher Co., 122 N.W. 628, 158 Mich. 356; Sterchi Bros. Stores, Inc., v. Castleberry, 182 So. 474; Employers' Liability Assur. Corp. v. Columbus McKinnon Chain Co., 13 F.2d 128; Grinnell v. Carbide & Carbon Chemicals Corp., 276 N.W. 535, 282 Mich. 509; Ebbert v. Philadelphia Electric Co., 198 A. 323; McGuire v. Dalton Co., 191 So. 168; Miles v. Chrysler Corp., 191 So. 245; Reed & Barton Corp. v. Maas, 73 F.2d 359; Barrett Co. v. Bobal, 74 F.2d 406.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

Respondent, Ben F. Wallace, brought this suit wherein he sought to recover $ 15,000.00 damages for personal injuries suffered by him as the result of an accident to a tractor and trailer he was driving. A trial resulted in a verdict for the defendant. The trial court sustained plaintiff's motion for a new trial and the defendant appealed.

The motion for new trial was sustained on the ground that the instructions given at defendant's request, when taken together, over-emphasized the burden of proof resting upon the plaintiff. Appellant insists that even if the instructions were subject to the criticism leveled against them, the action of the trial court in granting plaintiff a new trial must be reversed because plaintiff failed to make a submissible case for a jury. If appellant is correct in this contention then of course a new trial should not have been granted. [United Const. Co. v. City of St. Louis, 334 Mo. 1006, 69 S.W.2d 639, l. c. 641 (1).]

Plaintiff was employed by the Service Lines, Incorporated, Nashville, Tennessee. That company was engaged in hauling freight by trucks. Plaintiff, at the time he was injured, was driving a truck loaded with merchandise of Loose-Wiles & Company of St. Louis, Missouri, destined for Nashville, Tennessee. The Service Lines used tractor trucks manufactured by International Harvester Company, and trailers manufactured by appellant, Herman Body Company of St. Louis. In the month of September or October, 1936, the Service Lines purchased a new tractor and took it to the defendant company to have a new trailer mounted or attached thereto. This tractor and trailer constituted the unit plaintiff was driving at the time of the accident. The trailer was attached to the tractor by means of a fifth wheel which was furnished by the appellant company. Liability in this case was based upon the theory that the fifth wheel was defective in that it was fastened or held in position by means of four, one-half inch bolts; that these were not sufficient and due to this defect the bolts sheared, permitting the trailer to come loose, run up on the cab of the tractor and injure plaintiff. The accident occurred on February 13, 1937. The unit had traveled about forty thousand miles during the four months it had been in use hauling freight between St. Louis and Nashville.

A brief review of plaintiff's evidence will demonstrate that a submissible case was made for a jury. In considering the question we must take plaintiff's evidence as true. Plaintiff testified that as he approached Buffalo, Kentucky there was a curve to the right and a small incline in the road; that just beyond the incline a side road with a downward grade connected with the main highway upon which he was traveling; and that about twenty feet beyond the side road was a small concrete bridge. Plaintiff testified that a car was driven from the side road immediately in front of his truck on the main highway; that to avoid striking this car he made a sudden application of the brakes, and immediately after doing so the trailer broke loose from the tractor, struck the cab and knocked him to the floor causing him to lose control of the tractor; that the trailer then slipped off the tractor and turned to the left side of the highway; that the tractor continued down the grade until it struck the left side of the concrete bridge. Plaintiff was severely injured. Two drivers of similar units for the Service Lines were following only a short distance behind plaintiff and they released him from the wreckage. Plaintiff, as well as other witnesses, including the man who pulled the wrecked unit to Nashville, testified that the bolts holding the fifth wheel were sheared. Plaintiff testified that these bolts sheared immediately after he applied the brakes and that the trailer left the tractor before the latter struck the bridge. A number of witnesses, whose qualifications upon the subject were not questioned, testified that four, one-half inch bolts were not considered of sufficient strength to properly hold the fifth wheel; that it was customary to use U-bolts which clamped around the fifth wheel and held it in place in addition to the one-half inch bolts; that if no U-bolts were used the bolts should be larger than one-half inch. A witness also testified that some of the Herman fifth wheels were fastened with U-bolts. Plaintiff testified that the brakes had properly functiond up to the time of the accident. Edward Toenjes testified that he personally took a new International Harvester tractor to ...