Zesch v. Abrasive Co. of Philadelphia

• Decision Date: 06 November 1944
• Docket Number: 39133
• Parties: Walter R. Zesch, Respondent-Appellant, v. The Abrasive Company of Philadelphia, Appellant, and Production Tool and Supply Company, Respondent
• Court: Missouri Supreme Court

183 S.W.2d 140

353 Mo. 558

Walter R. Zesch, Respondent-Appellant, v. The Abrasive Company of Philadelphia, Appellant, and Production Tool and Supply Company, Respondent

No. 39133

Supreme Court of Missouri

November 6, 1944

Appeal from Circuit Court of City of St. Louis; Hon. William K Koerner, Judge.

Affirmed.

John F. Evans for appellant, The Abrasive Company of Philadelphia.

(1) Plaintiff's evidence was insufficient to establish the charges of negligence against defendant. Having failed to make a jury case, the verdict for defendant was proper, and plaintiff should not have been granted a new trial regardless of any possible error in the instructions. Shroder v Barron-Dady Motor Co., 111 S.W.2d 66; United Construction Co. v. St. Louis, 334 Mo. 1006, 69 S.W.2d 639. (2) Evidence that a flaw in an abrasive wheel could have been discovered by a certain special test did not convict the manufacturer of negligence, in the absence of any evidence that this test was recognized or used by manufacturers of abrasive wheels in the exercise of ordinary care. Minnier v. Railway, 167 Mo. 99, 66 S.W. 1072; Brands v. St Louis Car Co., 213 Mo. 698, 112 S.W. 511; Chrismer v. Bell Tel. Co., 194 Mo. 189, 92 S.W. 378; Schaum v. S.W. Bell Tel. Co., 336 Mo. 228, 78 S.W.2d 439; McClaren v. G.S. Robins & Co., 162 S.W.2d 856; Wommack v. Orr, 176 S.W.2d 482; 38 Am. Jur., pp. 682, 747. (3) The evidence on the issue of negligent failure to make a special test of the wheel would require the jury to indulge in speculation and conjecture to arrive at an affirmative finding for plaintiff. Link v. Hathway, 143 Mo.App. 502, 127 S.W. 913; Goransson v. Riter-Conley Mfg. Co., 186 Mo. 300, 85 S.W. 338; Kerr v. Bush, 215 S.W. 393. (4) Instruction 2 was proper in form, and contained vital elements which were essential to a proper consideration of the evidence. Sanders v. Southern Ry. Co., 147 Mo. 411, 48 S.W. 855; Lewis v. Zagata, 350 Mo. 446, 166 S.W.2d 541; Gardner v. Turk, 343 Mo. 899, 123 S.W.2d 158; Dave v. A., T. & S.F. Ry. Co., 349 Mo. 798, 163 S.W.2d 548; Mueller v. Schien, 176 S.W.2d 449; Steinmetz v. Nichols, 180 S.W.2d 712; Sennert v. McKay, 56 S.W.2d 105; Trusty, Instructions, 1941, p. 133.

Geo. F. Osiek for respondent-defendant, Production Tool & Supply Company of St. Louis.

The demurrer was properly ruled, and the trial court did not err in refusing to set aside the involuntary nonsuit. Respondent, as a seller of a manufactured product, was under no duty to make special tests to discover the presence of hidden or latent defects in the abrasive wheel, and would not be liable because of such alleged defects. Shroder v. Barron-Dady Motor Co., 345 Mo. 70, 111 S.W.2d 66; State ex rel. Jones Store Co. v. Shain, 179 S.W.2d 19; Isbell v. Biederman Furniture Co., 115 S.W.2d 46.

B. Sherman Landau for plaintiff-respondent.

(1) Plaintiff may, on appeal, present grounds contained in plaintiff's motion for new trial other than those assigned by the trial court in granting plaintiff's motion. Macklin v. Fogel Const. Co., 326 Mo. 38, 31 S.W.2d 14; Cole v. St. Louis-S.F. Ry. Co., 332 Mo. 999, 61 S.W.2d 344; Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471. (2) As the abrasive wheel which caused plaintiff's injuries was designed and intended to be operated at extremely high speeds, it was such a dangerous instrumentality as to require the defendant manufacturer to exercise ordinary care to test the wheel before releasing it for sale to the public, and the failure to exercise such care was negligence on the part of the manufacturer. 2 Restatement of Law of Torts, sec. 395, p. 1076; McLeod v. Linde Air Products Co., 318 Mo. 397, 1 S.W.2d 122; Jacobs v. Frank Adams Electrical Co., 97 S.W.2d 849; McCormick v. Lowe & Campbell Athletic Goods Co., 144 S.W.2d 866; White v. General Chemical Co., 136 S.W.2d 345; Morris v. E. I. DuPont de Nemours & Co., 341 Mo. 821, 109 S.W.2d 1222; McPherson v. Buick Motor Car Co., 217 N.Y. l.c. 389, 111 N.E. 1050, L.R.A. 1916F, 696, Ann. Cas. 1016C, 440; Statler v. Ray Mfg. Co., 195 N.Y. 478, 88 N.E. 1063. (3) Plaintiff was not required to prove that it was customary for other abrasive wheel manufacturers to use ordinary care to test their high-speed wheels, as the obligation to exercise ordinary care is one imposed by law irrespective of practice or custom. The defendant manufacturer's negligence is not excused by the claim that others engaged in the same business have themselves been habitually negligent in a like respect. Grosvenor v. New York Cent. R. Co., 343 Mo. 611, 123 S.W.2d 173; Texas & Pac. Ry. Co. v. Behymer, 189 U.S. 468, 23 S.Ct. 622, 47 L.Ed. 905; Olds v. St. Louis Natl. Baseball Club, 119 S.W.2d 1000; Cameron v. Small, 175 S.W.2d 177; Dewey v. Kline's, 86 S.W.2d 622; Jones v. West Side Buick Auto Co., 93 S.W.2d 1083; Daniel's Admr. v. Hoofnel, 155 S.W.2d 469; 45 C. J. 707. (4) Defendant's Instruction 2 contains an improper comment on insurance which is misleading and confusing and injects a foreign issue into the case. Larey v. M.-K.-T. R. Co., 64 S.W.2d 681; Kleinlein v. Foskin, 13 S.W.2d 648; Gower v. Trumbo, 181 S.W.2d 653; Bohn v. City of Maplewood, 124 S.W.2d 649; Fisher v. Pullman Co., 212 Mo.App. 280, 254 S.W. 114; Orr v. v. Bradley, 126 Mo.App. 146, 103 S.W. 1149. (5) It improperly comments on the detached portion of the evidence regarding the breaking of the wheel, which occurrence was an important link in plaintiff's chain of circumstantial evidence. Temple v. Samuel Cupples Envelope Co., 318 Mo. 280, 300 S.W. 265; Barr v. Kansas City, 105 Mo. 550, 16 S.W. 483; Littig v. Urbauer-Atwood Heating Co., 292 Mo. 226, 237 S.W. 779; Keppler v. Wells, 238 S.W. 425; Bohn v. City of Maplewood, 124 S.W. 649. (6) The caution against "mere speculation and conjecture" is prejudicially erroneous where the plaintiff's case rests entirely upon circumstantial evidence, as in the case at bar. Reynolds v. Maryland Cas. Co., 274 Mo. 83, 201 S.W. 1128.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Action by an employee against third persons (see Section 3699, R.S. 1939, Mo. R.S.A., sec. 3699; and Bunner v. Patti, 343 Mo. 274, 121 S.W. 2d 153) for $ 25,000 for personal injuries, the result of the "shattering" of an abrasive cutting-off wheel. The trial court sustained a demurrer to plaintiff's evidence as against Production Tool and Supply Company, defendant-respondent, vendor of the wheel -- an involuntary nonsuit was taken as to that defendant. The jury returned a verdict for defendant-appellant, The Abrasive Company of Philadelphia, manufacturer of the wheel, but the trial court sustained a motion for a new trial. Plaintiff has appealed from an order overruling a motion to set aside the involuntary nonsuit; and defendant-appellant has appealed from the order granting the new trial.

It was specifically alleged by plaintiff that defendant-appellant was negligent in manufacturing the wheel in that it was not properly bonded and contained excess air spaces; and that both defendant-appellant and defendant-respondent were negligent in failing to inspect or test the wheel for defects. It was alleged by defendant-appellant that plaintiff was guilty of contributory negligence in using the wheel without a guard, and in failing to wear protective goggles.

Plaintiff, a tool and die maker, was injured while in the employ of the Sieber Loose Leaf Company of St. Louis, a manufacturer of loose-leaf binders. At plaintiff's request his employer had ordered an abrasive cutting-off wheel from the Banner Machine Tool and Supply Company, who had no such wheel in stock but procured the wheel of defendant-appellant and delivered it to plaintiff. The wheel was six inches in diameter and one-sixteenth inch in thickness, and was designed for the purpose of cutting metal with its periphery or edge; it was not designed to sustain grinding pressure on its sides. The wheel exploded when being used by plaintiff in the shop of his employer in the performance of a grinding operation. The operation was being performed with a regular "Universal" grinder in grinding out .005 of an inch from the inside surface of a slot in a tool steel collect used for holding the wire from which screws were made for the binders manufactured by plaintiff's employer. The wheel was clamped upon a spindle of the grinder which spun the wheel at a spindle velocity of 4670 revolutions, or 7335.6 peripheral feet, per minute; and the collect was held by a milling vise bolted to an adjustable table which was so adjusted that the wheel was operated parallel with the surface of the slot which extended into the collet to the extent of three inches. Plaintiff did not attempt to grind out the full .005 of an inch of steel at the first cutting, but undertook to grind out .003 of an inch. The first grinding operation consumed about fifteen minutes, after which the plaintiff (in preparation for a second grinding to cut the remaining .002 of an inch) proceeded with two "cleaning" cuts to "take out the high spots" during which the collet was fed into the wheel without changing the relative positions of the slot and wheel. The first cleaning cut took about ten minutes. During the second cleaning cut, when the wheel had proceeded about one inch into the extent of the slot, the wheel "blew up," exploded; a portion of the wheel shattered the plaintiff's reading glasses, and a fragment or fragments of glass destroyed the vision of plaintiff's right eye.

If was the testimony of an expert witness that a wheel such as injured plaintiff is manufactured by binding (under heat) minute aluminum oxide crystals together by the use of a resinous binder. In the process of manufacture a tiny hole or pocket, or a collection of crystals which are not bonded, may be left within the composition of the...