Vogt v. S. M. Byrne Construction Co.

17 Wis. 2d 96

• Court: Wisconsin Supreme Court
• Decided: June 5, 1962
• Status: Published

Opinions

Dietesich, J.

This case involves a typical “do-it-yourself” project.

The testimony showed that the grinder was kept in an unused classroom in the school building, which room was used as a toolroom. On the morning of the accident, Mr. Byrne, president of Byrne Construction Company, arrived at St. Therese bringing a grinder (not involved in the accident), at the request of Father Wilwers, a priest of the parish. Byrne, his nephew Prasch, Father Wilwers, Motola, and others then went to the toolroom and removed a different grinder from a locked cabinet. This is the grinder involved in the accident. Upon inspection, Byrne decided that this grinder would not be usable as the emery wheel' was badly worn. Father Wilwers then left and returned with two grinder wheels which the testimony reveals were obtained as army-surplus items. Byrne and Father Wilwers then took the lead core from the worn wheel and put it into the new wheel furnished by Father Wilwers in order to make this wheel fit the shaft of the grinder. Since the replacement wheel was too large, the safety shield had to be removed in order to accommodate it. Byrne testified that he then spun the wheel with his hand and said to those present that the wheel would not work, that it was not safe. Prasch’s testimony agreed with that of Byrne. Prasch added that Father Wilwers also turned the wheel and that Father Wilwers and Byrne decided the wheel would not work as it did not fit properly. They all left the toolroom leaving the grinder on a bench in the room.

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

Father Wilwers was not called upon to testify and the plaintiff Vogt was not present when Byrne and Father Wilwers worked on the grinder in the toolroom.

Byrne Construction Company contends that under these facts it cannot be held to have entered a bailor-bailee relationship with St. Therese with regard to the grinder and that even if it is assumed Byrne was a gratuitous bailor, there was no breach of any duty to the plaintiff.

Restatement, 2 Torts, p. 1039, sec. 388, “Chattel Known to be Dangerous for Intended Use” provides:

“One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

“(a) knows, or from facts known to him should realize,that the chattel is or is likely to be dangerous for the use for which it is supplied;

“(b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and

“(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so.’’ (Emphasis supplied.)

The comment on clause (c) states in part as follows:

(p. 1048) “j. The supplier’s duty is to exercise reasonable care to inform those for whose use the article is supplied of dangers which are peculiarly within his knowledge. If he has done so, he is not subject to liability, even though the information never reaches those for whose use the chattel is supplied. . . .”

(p. 1050) “l. . . . There is necessarily some chance that information given to the third person will not be communicated by him to those who are to use the chattel. This chance varies with the circumstances existing at the time the chattel is turned over to the third person, or permission is given to him to allow others to use it. These circumstances include the known or knowable character of the third person and may also include the purpose for which the chattel is given. Modern life would be intolerable unless one were permitted to rely to a certain extent upon others doing what they normally do, particularly if it is their duty to do so. . . .”

St. Therese is a charitable corporation. Father Wilwers was, because of his position, a person of authority within the organization. As an agent of St.. Therese he had called Byrne to bring a machine for grinding and had supplied the replacement grinding wheel. The uncontroverted evidence is that Byrne and Father Wilwers worked on the grinder together and that they concluded that unless the grinder had a better grinding wheel the grinder would not work; that it was unsafe. Under these circumstances the responsibility of using the grinder shifted to Father Wilwers.

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

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

See also Rudy v. Chicago, M., St. P. & P. R. Co. (1958), 5 Wis. (2d) 37, 92 N. W. (2d) 367.

Inasmuch as we determine that the evidence does not sustain the verdict, we find it unnecessary to discuss Byrne Construction Company’s contentions with respect to contributory negligence and inadequate instructions to the jury.

By the Court. — Judgment reversed, and cause remanded with instructions to dismiss the complaint.

The following opinion was filed October 2, 1962: