*1 сourt by a domestic judicially determined passed been has. subsequent litigated' again in a competent jurisdiction cannot be universal simple privies, or their parties suit between-the same difficulty or cases, only recognized ly in almost innumerable ours). (italics particular cases” application conflict its Truck Service v. Willers J., 1282, p. also, 868. Keith 34 C. See Sec. 256, 104 L. R. 1471. al., 266 N. W. A. D., et will, jury, the 1939 but may Mrs. executed have Norwood the verdict not, No. and we think 'cause found she did adjudicata, precludes defendant cause, the rule under of res alleged 1939 will invoking from facts to establish subsequent will. It will not be .the will -was revoked questions. necessary consider other judgment and the cause remanded The should reversed plaintiff’s petition will out in judgment direction that the set to enter ordered. Anna K. Norwood. It is so is the last and testament of will Osdol, CC., Dalton and Van concur.
' C., adopted foregoing opinion Bradley, PER CURIAM: —The opinion judges of the court. All the concur. as the Company Zesch, Respondent-Appellant, Walter R. Abrasive Supply Philadelphia, Appellant, and Production Tool and Company, Respondent. (2d) 39133. 183 S. W. 140. No. One,
Division November *2 John F. appellant, Evans for Company Abrasive of Phila- delphia. Supply & Production Tool respondent-defendant, Osieh for
Geo. F. Company of St. Louis. *3 plaintiff-respondent.
B. Sherman Landau for OSDOL, YAN employee against C. Action third persons (see Section A., R. S. 3699; Mo. R. S. see. Patti, Bunner v. 153) $25,000 121 S. W. per- injuries, sonal “shattering” cutting- result of the anof abrasive off wheel. The triаl court a demurrer plaintiff’s evidence sustained against *4 Production Supply and Company, Tool defendant-re- spondent, vendor of the wheel—an involuntary nonsuit was taken as defendant. n The to that jury defendant-ap- a returned verdict for pellant, Company The Philadelphia, Abrasive of manufacturer of the wheel, but the trial court sustained a .a Plain- motion for new trial. tiff appealed has overruling from an order a motion to aside the sеt involuntary nonsuit; and defendant-appellant appealed has from granting the order the new trial.
It was specifically alleged by plaintiff defendant-appellant was negligent in manufacturing wheel properly the in that it was not bonded and contained air spaces; excess and that both defendant- appellant defendant-respondent and negligent failing were in inspect or alleged test wheel defects. It was defendant- appellant plaintiff guilty contributory negligence was of using in the wheel guard, failing a without and in protective goggles. wear Plaintiff, a and maker, injured tool die was while employ .in the Sieber Company Loose Leaf Louis, of St. a manufacturer of loose- leaf plaintiff’s binders. request employer his had ordered an .At cutting-off abrasive wheel from Banner Supply Machine Tool and
Company, procured such wheel had no wheel in bnt who stock was defendant-appellant plaintiff. and The wheel delivered it to six was thickness, inches in diameter and inch one-sixteenth edge; designed or cutting periphery for the metal with its The designed grinding it was to sustain on its pressure not sides. ;when being em- exploded by plaintiff shop wheel of his used ployer operation. performance grinding operation of a grinder grinding with a performed regular “Universal” a steel out .005 of an slot in a tool inch from the surface inside holding cоllet used for the wire from which screws were made clamped by plaintiff’s binders employer. manufactured The wheel was spindle grinder a spun spindle which the wheel a at velocity minute; revolutions, feet, peripheral per 7335.6 or by milling and the a adjustable collet was held vise bolted to an table which adjusted operated that the parallel so wheel was with the surface of the slot which extended into to the of three the collet extеnt inches. an attempt grind Plaintiff did not out .005 of the full grind an cutting, inch of steel at but .003 of the first undertook to out grinding minutes, inch. The operation first about fifteen consumed (in after which preparation grinding cut for a second remaining inch) an proceeded .002 cuts “cleaning” <3f two high spots” during to “take into out the which the collet was fed changing the wheel without positions the relative slot cleaning During wheel. ten The first cut took about minutes. cleaning cut, second when the wheel had about one inch proceeded slot, up,” into exploded; portion the extent of the wheel “blew plaintiff’s reading glasses, fragment the wheel shattered fragments destroyed glass plaintiff’s right eye. or the vision of testimony
If expert was the of an witness that a wheel such as injured plaintiff by binding (under heat) is manufactured .minute crystals together by aluminum In oxide the use of resinous binder. process tiny pocket, of manufacture a hole or collection crystals bonded, -may within composition are not left dangerous running flaw wheel, wheel. Such a is at because high speed, subjected to “both radial force and circumferential ’’ bursting may- flaw though greatest A occur force. there care fragile; manufacture of article. Such wheels are “are us”; broken all the time most of and numerous factors can cause them to break.
It opinion expert (in was the our witness ease) development progressive “failed because of a flaw *5 ’ ’ . plaintiff days . . The wheel had been a to few before delivered plaintiff injury. his Upon receipt of sustained wheel inspection, fingernail and, made a visual “flicked” it his seeing gross imperfection crack finding ring no it to if or soundly made, placed upon a nail it over his workbench. The evidence does not a tend to show there of the was defective condition by wheel which have been which pinging, could discovered or could have been from it appearance; observed exterior wheel’s by expert was a defect, flaw, stated witness that latent or by “only manufacture wheel test been ascertained could have ing particular up actually to see it :under whether stands higher a- speed you witness than one intend it for.” The use stated, test) supposed (in making had “It is a at be rotated per greater During cent than speed operation.” cross-examina of Engi tion the 10.2 by witness confronted Rule of the American neering Safety Standards Code provides, which operated exceeding 6,500
“No shall be speeds peripheral wheels at per minute, feet speed which have not at least been tested at 50 per operating speed, following cent faster than the with the ex- ceptions : square “b. than 8-ineh product Wheels less where diameter ” by
diametеr thickness in inches than . is . . less It is clear the wheel in instant ease within the size provided exception the Code. No direct evidence was introduced tending to among show whether was was not a custom manu- there cutting-off (in exception) facturers to test size within the wheels by propelling they such wheels aat rate in excess of that which were propelled to be in use. Other facts will be noticed in the course opinion. assigned (as appеllant) refusing
Plaintiff has error in to- involuntary nonsuit, being urged set aside the it defendant- -that respondent, vendor, chargeable duty ordinary is with the to exercise determining suitability product care in use to ordinarily it is applied, warranting impliedly sold to be article defect, free from a knowledge hidden will and want of the defect not relieve the seller. and' Defendant-respondent, Tool Production. Supply Company, obligation asserts that a is seller under no tо test’ articles manufactured others to hidden discover defects. Barron-Dady In (Mo. Sup.), the case of Shroder v. Motor Co. Ill between;
S. 2d 66, generally W. this court observed the distinction liability liability of the manufacturer and the vendor chattels, particularly question ruled duty-of vendor to make tests latent article Said the defects sold. “ (111 court page 70), 2d at ‘. . . W. The seller is under no obligation packed by to test articles for the manufactured others ’ discovering dangers. L. latent or hidden 24 R. C. Relating see. 802.” required vendor, court-quoted the care of a Yol. II, Tofts, Law Restatement of “A vendor of chattel subject liability manufactured . person third . . if, although ignorant he dangerous or condition character of the chattel, he exercising could have it reasonable discovered *6 which as competence peculiar opportunity and
care to utilize the a retail or should have.” Should dealer in such chattels he has which to observe conditions opрortunity vendor have wholesale him to realize should cause competent dealer in such commodities for dangerous goods likely any be in condition that are or are goods or are are that use, “His inform his vendees failure to if his ignorance thereof, likely dangerous by is not excused his to be special opportunities ignorance failure utilize his is due to his discovering whether for the special competence exercise his they sold.” which are goods' for the use for are or are not safe 402. See Torts, sec. Law a, II, Restatement of the Comment Yol. W. 2d 431, 166 350 Mo. Corporation, Motors also Gibbs v. General 575. defendant-respondent that un- does not tend to show evidence special pur- cutting-off particular dertook to wheel furnish wheel, and that use distinguished ordinary
pose, from as. defendant-respondent judgment relying upon the plaintiff was purpose. Absent particular special suitable for the wheel was suitability of the warranty of the showing implied no such a there was al., 352 Mo. v. Shain et ex Store Co. article sold. State rel. Jones liability subjected when 630, W. 2d A vendor has been 179 S. certain conditions he should have known an article when used under use. reasonably anticipated such dangerous, have and could would 2d 727, 337 Mo. 85 S. W. May Department Co., Stores See Arnold v. by plaintiff-appellant. cited Company, a Supply Defendаnt-respondent, Production Tool and inspection, the flaw an exterior could not have discovered vendor, nothing by sounding, shown in evidence and there was a test to have realized that wheel have caused a vendor should duty, no Defendant-respondent had under unsafe for use. rigid inspection latent subject to a or test for a facts, to Co., II, supra; Restate Barron-Dady Motor Vol. flaw. Shroder v. -the Torts, a, 402. We hold that ment of the Law of Commеnt overruling the motion to set aside correctly ruled in trial court involuntary nonsuit. defendant-appellant Now, the contentions of addressing —the giving errors of Instructions Numbers specified
trial court grounds defendant-appellant) as (given the instance of 3 and 4 at by defendant-appellant contended granting the new trial. It is ground specified trial a new granting the trial court erred plaintiff- instructing and, further, jury; error against case out defendant- respondent did not make a submissible against to make a submissible case appellant. plaintiff failed out If although trial, should have a new defendant-appellant, plaintiff not et al. giving of instructions. Hendricks possible there was error concurrently 848, al., S. W. decided Weaver et herewith; Barron-Dady supra; Motor United Const. Co., Shroder v. 1006, 69 2d 639. City Louis, Co. v. of St. 334 Mo. S. W. Plaintiff-respondent no contention that a submissible makes negligence the manu against defendant-appellant cаse was made court wheel, submitted trial facture of the and the case was *7 to in specific negligence defendant-appellant failing hypothesizing of the wheel. condition proper make test to ascertain defective on the issue defendant-appellant that the evidence by It asserted is jury indulge to negligent require to a test failure make would conjecture a verdict speculation in in order to arrive at plaintiff. no defendant-respondent made
'There was no direct evidence that the it must wheel, so proper test to determine if there was a flaw a submis that, question of there was be seen answer the whether to necessary test, it negligence in make a sible case failing reasonably if to make the could have been determine the failure test in speed a rate of A which the wheel was run at by inferred. test flaw, have disclosed a of that it would be run in use excess could according witness, opinion a flaw caused expert to the and in his evidence determine if there was substantial to fail. We should wheel negligent wheel, factually of the existence of a flaw in the before Brock reasonably Van the test be inferred. See failure make could 258; Louis, 425, Mo. 161 S. W. First Nat. in 2d v. Bank St. 125; 616, 2d Delivery Co., 345 Mo. 134 S. Wills Berberich’s W. v. 821, 109 S. Co., 341 Mo. W. Morris v. E. I. de Nemours DuPont & Q. 1222; 162; R. L. 130. 2d 95 A. L. 27 W. latent There no evidence that the wheel contained was direct fragments (some) of those microscopic A examination flaw. flaw; expert indication of a presented to the disclosed no
wheel However, the wheel to break. numerous factors could have caused the evidence standpoint plaintiff, from a favorable to most viewed, order; was grinding that machine was in the wheel tends to show operated being nicely clamped upon spindle; the wheel was at firmly in speed; its maximum rated thе collet was screwed rate below grinder; rigidly fixed the table of the milling vise which was great; made play” spindle not too the wheel was the “end of the was edge; being done cutting grinding for the with was its during wheel; although the side the wheel edge of the collet, grind of the operation was in “contact” with the steel edge wheel and there periphery was done with ing operation were pressure on the wheel unless the be no side would novice; experienced tool and being performed by maker; negative possibility die evidence tends handling damaged by prior had cracked or a blow careless been by plaintiff; early evidence, to its the wheel broke in This use its use. in in opinion, our existed substantial, circumstantially, that a flaw composition of the wheel. by defendant-appellant
It is contended “Evidence that, in an abrasive wheel a certain flaw could have been discovered special negligence, in the test did not convict the manufacturer any absence of or used recognized test evidence this ordinary care.” manufacturers abrasive wheels in the exercise Orr, 477; cases of Wommack Schaum 113, 352 Mo. 176 S. W. v. S. Co., 228, 439; W. Bell Tel. Brands v. St. 336 Mo. 78 W. 2d S. Co., 698, Louis Car Tel. 511; 112 S. Chrismer v. Bell W. Co., 378; 194 Mo. W. R. Sedalia, 92 S. W. Minnier v. W. & S. Co., 167 Mo. 66 W. contention. support are cited question These masters. cases involve care of standard of Usage import gauge is of more of a master determining of care persons than may relations —this due some some other measure to the rule of the law of master and servant that the servant 1416; ordinary A. R. assumes risks of his work. See 68 L: Am, Jur., Servant, Master and risks are those Ordinary *8 arising of injury risks incidental the business, to the other than risks negligence negligence from the master; of and the of of test master in said machinery his has been methods, appliances ordinary usage to be the Tel. Schaum v. W. Bеll business. S. Co., supra. Defendant-appellant has also cited the case of McClaren v. S. Co., G. & it 856; Robins 349 Mo. 162 W. 2d in that case S. negligent plaintiff contention of the that defendant was selling carbon warning “poison” tetrachloride without word penal thereon violation of the of Illinois. This statute State drug, court held that carbon not a and not of the tetrachloride ivas statute; kind or class of and that substances mentioned in warning by defendant, Solvent, adequate used “Volatile use with prolonged breathing vapor” ventilation. Avoid adopted had been by product. plaintiff’s manufacturers of decedent met his this The product death breathing working fumes of the while inside the preheater “cased-in” of a boiler. The evidence showed that there danger product except no in using this in a confined unventilated place.’ plaintiff’s apparently very The decedent was warned of the propеrty product which, facts, under caused death. his authority (or This case is not for a contention that a seller a manu facturer) subjected liability could warning not have been if a dangerous (which injury) property product had caused an (or manufactured) printed upon sold had not been the cans contain ing product, although had to show it failed that was (or manufacturers) the custom of other sellers of carbon tetrachloride warning to úse а-similar label. evidence, reasonably
Often no other of what is a method of safe complicated conducting industry, work of modern is available
567 except usage methods But tested similar work. due care taking precautions is exercised by dangers commensurate with the usage, masters, which should apprehended. be A even of make cannot practice inherently unreasonably which dangerous is the standard of care. Schaum W. Co., supra. generally v. S. Bell it Tel. And is held, involved, where the relation of master and servant is not may usage conclusive, be properly considered, sometimes is not but it aas 1401; standard of care. L. ex rel. Elliott’s De A. R. State partment Haid, 1015; v. 51 W. 2d v. Co. S. Olds Store St. (Mo. Louis 1000. App.), Nat. Baseball Club 119 W. S. 2d
It thing that, is said that if nature of is such manufactured manufactured, when lawfully for which it it used is reasonably place negligently peril certain life limb in when made, thing danger thing it is then of this manufacturer danger duty carefully. Air under it McLeod Linde make Co., Products 122; 318 Mo. Prank Adams S. W. Jacobs v. Electric (Mo. App.), 849; Co. Buick McPherson v. Motor W. 2d Co., 382; Torts, 217 N. II, Y. Vol. Bestatement of the Law may given imperfection And an article contain a latent making danger (though reasonably thing article to be a certain it is carefully manufactured), imperfection it is shown that the where could be seem test, disclosed it reasonable that manu would duty to ordinary facturer in the care would under a exercise make the test.
We argument defendant-appellant cannot follow the the plaintiff-respondent’s case fail because there was no evidence must wheels, that defendant-appellant, or other manufacturers of abrasive possessed necessary necessary equipment perform the test. equipment require a test no more than the installation such would instrumentality necessary which would rotate the whеel at *9 high speed. rate of plaintiff against a
We rule out submissible case de that made fendant-appellant. stated,
As trial the trial the motion for a new court sustained upon ground specified instructing jury; of error error in and specified instructions, giving was court in of three trial 4, 2; defendant-appellant. Numbers 3 and at the Instruc instance of follows, 2 tion Number is as defendant, “You are that under the law of this case instructed Company Philadelphia, insure plaintiff The did not Abrasive ,
against breakage evidence, the wheel mentioned in the and plaintiff merely would not be because broke. Be- liable said wheel against you Company fore can The Abrasive find and return verdict , Philadelphia you preponderance must find and believe from the weight plaintiff greater all the credible evidence that was caused injured negligence result of act of on the part be as direct some
568 defendant, negligence of said as such in defined and out set you instructions, other find your unless do so should and verdict Philadelphia. be for The defendant, Company Abrasive negligence you “In determining presume the issue of cannot that negligent merely the defendant was because the wheel broke while by plaintiff, your used and verdict cannot be based on mere speculation conjecture or of the but must be arrived at on the basis preponderance greater weight of the evidence.” crеdible instruction, abstract,
This
considered
cautionary and somewhat
was
prejudicially
the trial court to be
erroneous and we are mindful
that the
passing
trial court
wide discretion in
on a motion
has
sustained,
that,
appellate
new trial
where
motion is
court
and
Hoepper
will
liberal
in
action.
upholding
be
the trial court’s
v.
Hotel
In
bar
Co.,
378,
Southern
Mo.
It is so ordered. opinion' Osdol, C., Van foregoing PER CURIAM: —The judges concur. opinion All of the court. adopted Exchange Darlington Railway Cor- Building, Inc., P. A. (2d)W. Appellant. 38983. 183 S. poration, No. Two, 9, 1944. October
Division Overruled, Rehearing Transfer to Banc Motion to Denied 13, 1944. November