*1 Vogt, Plaintiff and M. Respondent, v. S. Construc Company, tion Defendant and Appellant: Impleaded Defendant and Respondent.* 5, 1962.

May 2 June * denied, Motion for rehearing costs, without on October J., taking part. Wilkie, no *2 Bender, Trump, there was a brief by For the appellant and Kneeland A. Godfrey Davidson & Godfrey, attorneys, Milwaukee, counsel, Kneeland argument all of and oral Godfrey. brief T. there was a by Ray For the plaintiff-respondent counsel, McCann, and Leonard L. Loeb both attorney, Milwaukee, Mr. Loeb. argument and oral there was a brief

For defendant-respondent the impleaded Thomas attorneys, Rebhols & J. Duffey, Duffey ánd counsel, Milwaukee, oral Thomas J. all of argument by Duffey. This case involves a typical “do-it-your-

Dietesich, J. self” project. was in an showed that testimony grinder kept

unused classroom room the school was building, accident, used as a toolroom. On of the morning Construction Byrne, president of arrived Company, at St. Therese involved in the acci- bringing grinder (not Wilwers, at of Father of the dent), priest request Prasch, Wilwers, Motola, Father parish. Byrne, nephew and others then to the went toolroom and removed a dif- ferent from a locked grinder cabinet. This is the in- volved in the accident. decided Upon inspection, this not be would usable wheel' emery worn. Father then left badly Wilwers and returned with two wheels which the reveals ob- were tained as items. army-surplus Father Wilwers *3 then took the lead core from the worn wheel and into it put the new wheel furnished Father Wilwers in order to this make wheel fit the shaft of the re- Since the grinder. placement wheel the was too large, safety shield to be removed in order to accommodate it. testified he then his the wheel with hand spun and said to those work, present that the wheel would not it that was not safe.

Prasch’s with that of testimony agreed Byrne. Prasch added that Father Wilwers also turned the wheel and that Father Wilwers and decided the wheel would not work as it did not fit all the properly. They left toolroom leaving the on a bench in the room.

Frank who was also present, testified that he remembered no conversation Byrne that the grinder would not work with the replacement wheel or that was not safe. On cross-examination Motola admitted that he was though occurred, when the conversation that he did not remember of what had been said.

Father Wilwers was called to testify plaintiff was not Vogt when Byrne and Father Wilwers worked on in the toolroom. these contends under Construction Company a rela- held entered

facts it cannot be have bailor-bailee to to the St. Therese with regard tionship bailor, if assumed was a that even it is gratuitous was no of to the duty plaintiff. there breach Restatement, Torts, sec. “Chattel Known p. to Use” be for Intended Dangerous provides: a third through

“One who or directly person supplies use, to to those for another is subject liability chattel to with the to use the chattel whom the should supplier expect of of or be in the its probable consent the other to vicinity use, harm chattel caused the use bodily it is which and for whose use sup- manner for by person if the plied, supplier realize,- knows, from known to him should facts “(a) use for be for the that the chattel is or likely dangerous which it is supplied; that those for whose and has no reason to believe

“(b) its condi- will realize dangerous use the chattel is supplied tion; and them to exercise reasonable care to “(c) inform fails it likely which make

its condition dangerous facts to be so.’’ supplied.) (Emphasis states in follows: part The comment on clause (c) is to exercise reasonable “j. 1048) duty (p. supplier’s article is use the supplied care inform those for whose If he are within knowledge. dangers peculiarly so, subject though even liability, has done is not *4 is chattel never reaches those for whose use the information .” . . supplied. . “l. . . There is some chance that necessarily 1050)

(p. will be communi- to the third given person information This him who are to use the chattel. cated to those at the time the chance varies with the circumstances existing is chattel is turned over to third person, permission use to him to allow others to it. These circumstances given or knowable character of the third person include the known is include for the chattel purpose and may Modern given. life would be intolerable unless one were per- mitted to to a certain what rely extent others doing do, if it their they do normally particularly to duty so. . .”.

St. Therese is a charitable corporation. was, because within the position, person authority As an organization. Therese he agent had called St.. for bring machine and grinding supplied replacement wheel. The grinding uncontroverted evidence is that Wilwers worked on the grinder together and that concluded that unless the they had a better work; wheel grinding would not that it was unsafe. Under these circumstances the respon- using shifted to Father sibility Wilwers. The fact that Father Wilwers was not called Vogt upon by to testify corroborated the testimony given Byrne and Prasch.

“ ‘The general is that the rule failure of a to call a party control, material witness within his such whom would be more natural for call than the party opposing party, ” raises an inference such against v. Milwau- party.’ Coney kee 520, 526, & S. Corp. T. 8 Wis. 99 N. (1959), (2d) W. (2d) 713. M.,

See also Rudy v. St. P. Chicago, & P. Co. R. (1958), 5 Wis. 92 N. W. (2d) (2d) 367.

Inasmuch as we determine that the evidence not sus- does verdict, tain the we find it unnecessary to discuss Con- struction contentions Company’s respect contributory negligence inadequate instructions to the jury. reversed, By Judgment cause remanded Court.— with instructions to dismiss the complaint. was filed October 1962: following opinion

Per Curiam motion We acknowl- rehearing). {on edge our modification in original opinion requires two but we reach no respects, different result.

100a held, substance, law, that as a defendant We matter either to use had denied permission particular grinder care to exercised reasonable inform plaintiff This it was not safe. was based Mr. co-workers that Prasch, Mr. corroborated that testimony, Byrne Byrne’s work, “said to the wheel would not that those that it was not safe.”

We said:

“Frank who testified he present, was that remembered that the would by Byrne no conversation wheel or it was work with the that not safe. replacement admitted though On cross-examination Motola that he occurred, when that he did not re- the conversation what had been said.” member any direct Upon The statement just quoted incomplete. counsel, Mr. Motola testified to plaintiff’s examination by made while Mr. Wilwers were statements the second one on the installing old wheel and removing the follows : testified as He also grinder. Mr.

“Q. or not at time ever any State whether unsafe ? No. about the new wheel A. being anything stated mentioned anything. He never at ever

“Q. or not time State whether an A. experiment. about this just being mentioned anything He never said anything.” no out brought

Defendant’s cross-examination quoted. testimony just inconsistent later Upon also an defendant. impleaded Mr. Motola was counsel testified in part: his own examination direct statement to make hear Mr. “Q. Did you fitting wheel not the grinding regarding therefore, it should not be not rotating properly, I recall.” Not used? counsel he testi- defendant’s cross-examination

Upon in part: fied

100b

“Q. You recall of in any the conversation that was had No, the room I there? A. don’t.

“Q. There were a few said that don’t quite things you recall? A. Yes.

“Q. And said number Mr. of things, Wilwers said a Yes. number things?

“Q. And those don’t A. No.” things you recall? Had Motola’s Mr. remained as first testimony unqualified there would have been a given, question for the to de- jury cide whether did or did not tell Father Wilwers and conclude, Motola was unsafe. however, We that Motola’s later did remember whol- testimony not of his earlier ly credibility It follows destroyed testimony. that the verdict favorable to was not jury plaintiff supported credible evidence. is

Our original opinion qualified conform this memo- randum.

We said:

“The fact that Father Wilwers was not called upon by Vogt to testify corroborated the given testimony and Prasch.”

This was on the that it would be more natural for theory call Father Wilwers for defendant so. plaintiff to than to do Plaintiff was of Father but parishioner Wilwers at the time of the statements alleged by Byrne. had dealt the matter directly for use and claimed lending parishioners to have made the Father statement to Wilwers. further Upon consideration, we cannot that it was more for say natural to call Father Wilwers than for defendant to do so. plaintiff He was at least for of the and trial part presumably Furthermore, available if either him. had called since we concerned were with the whether only evidence question verdict, existed which would support the not with the

100c was immaterial it to the contrary, of the evidence weight Prasch for the Byrne there was corroboration whether is withdrawn. The statement or not. testimony to me that It seems (dissenting). Fairchild, J. whole, the inter- as a open taken testimony conversation, entire to recall the was unable that he pretation un- wheel was said the had not that Byrne but was positive it was correct interpretation as to the safe. The decision Motola’s If the understood jury jury.1 Mr. Byrne him and disbelieve could believe suggested, just Prasch. and Mr. *7 entitled, rever- my opinion, defendant was

Although a new trial because the it and to sal of the judgment against I questions, did not contain appropriate verdict special a jury question the evidence presented satisfied that am not be dismissed. should that the complaint 472, 479, (2d) 99 N. W. Emerling 8 Wis. (1959), Klabunde v. 584, 594, 87 736; (2d) (1958), v. Wis. Weiner (2d) Winston (2d) 292. N. W.