Wilson v. Marland Refining Co.

• Citation: 7 S.W.2d 442
• Decision Date: 21 May 1928
• Docket Number: No. 16254.,16254.
• Parties: WILSON v. MARLAND REFINING CO.
• Court: Court of Appeal of Missouri (US)

7 S.W.2d 442

WILSON v. MARLAND REFINING CO.

No. 16254.

Kansas City Court of Appeals. Missouri.

May 21, 1928.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Action by S. E. Wilson against the Marland Refining Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Culver, Phillip & Voorhees, of St. Joseph, for appellant.

Miles Elliott, of St. Joseph, for respondent.

BLAND, J.

This is an action for damages for personal injuries. There was a verdict and judgment in favor of plaintiff in the sum of $2,999.99 and defendant has appealed.

The facts, as testified to by plaintiff at the trial, show that plaintiff, an employee of the defendant, was injured in November, 1925, by an explosion of an automobile tire while he was working as an attendant at defendant's filling station in Stanberry, Missouri; that in the performance of his duties for defendant, plaintiff was required to test, inflate and deflate tires on automobiles belonging to those patronizing defendant's filling station; that defendant furnished plaintiff a tire gauge, known as the "Shrader gauge," with which to ascertain the amount of air in tires. The gauge was made of metal. It was cylindrical in shape, with a sliding cylinder within an outside cylinder and about three inches in length and one inch in diameter. When one end of the gauge was pressed down on the core in the valve stem of the automobile tire tube, the air in the tube forced the inner cylinder out. On the side of the inner cylinder was a scale showing the pounds of pressure.

The air gauge in question was furnished plaintiff in the month of July prior to his injury and he continued to use it from that time until the explosion. The gauge worked perfectly during the entire time that plaintiff had it until three or four days before the explosion when he concluded that it was registering lower than the actual pressure in the tires. He arrived at this conclusion not by making a test of the gauge but by finding that tires that appeared to be fully inflated would, upon being tested by the gauge, register as though they were not so inflated. It was impossible for one to tell exactly how much air was in a tire by looking at it but it could be told by this method whether it was "low or real full." Plaintiff continued to use the gauge after he suspected that something was wrong with it and on the morning of his injury told Mr. Wallace, defendant's manager, and plaintiff's superior, that the gauge was "wrong." Wallace replied, "Let me have it," and took the gauge and kept it for two or three hours, after which Wallace returned the gauge to plaintiff saying, "Go ahead and use it, it was (is) absolutely all right." Relying on this assurance of Wallace, plaintiff proceeded to use the gauge and had used it only about two hours when he was injured. Although plaintiff used the gauge on various tires, nothing out of the ordinary happened between the time it was returned to him and the time of the explosion.

Upon the occasion of plaintiff's injury a customer drove up to the filling station in a Ford automobile. Under the rule of the defendant it was the duty of plaintiff to test and attend to the tires of customers whether requested by them to do so or not. Plaintiff inquired of the customer in question how much air was desired and she informed him "fifty pounds." Thereafter plaintiff proceeded to test one of the tires with the gauge in question and it indicated that there was only forty-five pounds of air in the tire. As the customer desired fifty pounds of air, plaintiff proceeded to put air into the tire with a hose connected with an air pressure tank. Plaintiff was in a stooping position with his head about level with the top of the tire and when he started to put air into it and had put in not more than two pounds, the tire blew out near its top, that is, near the top of the wheel and near the top of the casing, and the concussion caused an injury to plaintiff's head. He called upon a doctor for attention, returned to the filling station and again complained that the gauge was not working properly. Wallace then ordered him to go up town and get a new gauge, which plaintiff did. After obtaining a new gauge, plaintiff made a test of the old gauge by comparing it with the new one and other gauges, which disclosed that the old gauge, or the one used by plaintiff when injured, registered 15 to 20 pounds short. In other words, when the old gauge showed an air pressure of 45 pounds in the tire, the tire would actually have from 60 to 65 pounds of air in it. So it would appear that the customer's tire at the time plaintiff started to inflate it, already had more than 50 pounds of pressure in it, and had the gauge worked and registered properly, he would have taken out of the tire enough air to bring the pressure down to 50 pounds instead of putting more air into it.

Plaintiff testified that the tire in question appeared to be in good condition from an outside examination; that something was defective on the inside of the casing or there was a defect in the tube. According to one of defendant's expert witnesses, if a casing is already inflated to 60 pounds of air and there is a defect in the casing or in the tube and an effort is made to put in more air, even a pound or two, a blow-out may be caused, depending on how bad the defect is. This would seem to be self-evident.

Before the trial plaintiff's deposition was taken by the defendant. In his deposition he first testified that he did not mention to Wallace before the explosion that the gauge was working improperly, later he said that he had no recollection of having mentioned the condition of the gauge to the manager, Mr. Wallace, before the accident. He also testified in his deposition that after the explosion he showed the gauge to the manager, Wallace, and told him "it was wrong" and that Wallace took it and handed it back to him and told him to use it, that "it was all right." He also said that after the explosion he asked Wallace about getting a new gauge and asked him if he could use his (Wallace's) gauge and Wallace said "just go up town and get one," and plaintiff procured a new one. Plaintiff testified at the trial that he complained to Wallace before the explosion and that the assurance of safety was made when he made the complaint. The testimony shows that after plaintiff's deposition was taken it was transcribed and reduced to writing by a stenographer. A copy was furnished to plaintiff and he, in the presence of his attorney, read it over, and after reading it and before signing it, made certain changes in the deposition, which changes correspond to his testimony at the trial. Among the changes made in the deposition were the following: After the answer, "I made the complaint after the time of the accident and turned the gauge to Wallace and told him it was wrong and he handed it back to me and told me to use it; it was all right," he inserted "meant to say he told me to go to the store and get another." Later, as shown by the original deposition, he was asked—

"Q. I believe you said after the accident you mentioned to Mr. Wallace that this tire gauge appeared to be defective and he told you to go ahead and use it; that it was all right? A. Sir?

"Q. He told you to go ahead and use it, that it was all right? A. Yes, sir."

Following the answer to the last question, he inserted "that was before the accident." In other words, plaintiff changed his deposition in order to show that the assurance of safety was made before the explosion rather than after. Plaintiff, however, contends that his testimony in his deposition that Wallace told him after the accident to go and get another gauge shows on its face that the assurance of safety must have been before the accident and not after. However, the statement by Wallace that the gauge was all right and for plaintiff to use it, is not inconsistent with the testimony that he asked Wallace to let him get a new one and that Wallace consented to it. The evidence shows that plaintiff continued in the work for several months after the explosion. We find the following in the original deposition:

"I gave it to him and told him it did not register right and I didn't want to use it any more and he said he thought it was all right and I went up and got me another one and compared them and left the gauge with him and I don't remember what he done with it."

Of course, the fact that plaintiff changed his deposition, is some evidence that the deposition appeared to convey a different account of the matter than plaintiff thought it should. The apparent conflict between the deposition as it originally read and as changed as well as that between the original deposition and plaintiff's testimony at the trial, was a matter clearly competent for defendant to get before the jury as an admission against interest on plaintiff's part, made in his deposition.

However, at the trial the following occurred: Defendant upon cross-examination of plaintiff directed his attention to the deposition and that plaintiff did not sign it until he made some changes. Plaintiff was asked, "What was the nature of the changes you made in your testimony?" the court then stated that it would be competent to show the changes by the stenographer who took the deposition and that he didn't think it was competent to go into the contents of the deposition at that time. Counsel for defendant then stated:

"I desire to make this offer—I think under the circumstances in this case, where the changes —and if the court would like to see the changes I would like to show the court—completely change the case and all bear on one point only, that it would be proper for the defendant to be permitted to cross-examine the plaintiff as to the changes made in his testimony and as to why he came to make them, and when he discovered he wanted to change them.

"The Court: Without...