DeMaet v. Fidelity Storage, Packing & Moving Co.

• Decision Date: 23 December 1910
• Citation: 132 S.W. 732,231 Mo. 615
• Parties: PETER DeMAET v. FIDELITY STORAGE, PACKING and MOVING COMPANY, Appellant
• Court: Missouri Supreme Court

132 S.W. 732

231 Mo. 615

PETER DeMAET v. FIDELITY STORAGE, PACKING and MOVING COMPANY, Appellant

Supreme Court of Missouri, First Division

December 23, 1910

Appeal from St. Louis County Circuit Court. -- Hon. John W McElhinney, Judge.

Affirmed.

Jeptha D. Howe, A. E. L. Gardner, Alphonso Howe and Henderson Marshall & Becker for appellant.

John A Talty for respondent.

OPINION

GRAVES, J.

This case is certified to this court by the St. Louis Court of Appeals. The principal opinion is written by Hon. Eugene C. Tittman, as a special judge, and concurred in by Bland, P. J. Plaintiff was the husband of Predentia DeMaet, and as such brought suit for the alleged negligent killing of his wife by the defendant. Upon a trial in the lower court the plaintiff recovered. Upon a hearing in the St. Louis Court of Appeals the judgment was reversed outright by the concurrence of the two judges aforesaid. Judge Goode, however, was of the opinion that the plaintiff had made a case for the jury and dissented, and in such dissent, asked that the cause be certified to this court on the grounds that the majority opinion was in conflict with the cases of Stafford v. Adams, 113 Mo.App. 717, 88 S.W. 1130, and Rattan v. Railroad, 120 Mo.App. 270. Vide, DeMaet v. Fidelity Storage, Packing & Moving Co., 121 Mo.App. 92, 96 S.W. 1045.

From the dissenting opinion of Goode, J., it appears that the case turns upon the facts somewhat more than the law. His contention is that, under certain facts detailed in his opinion, the case was one for the jury, and under those facts the majority ruling was adverse to the two cases cited. This reduces the question here to the force and effect of the facts shown, and the further question as to whether or not the two cases mentioned go as far as Judge Goode was of the impression they did go; and it might be added that, if they did so go, whether or not the cases declared the law. The facts upon both sides are discussed and stated in the two opinions. For brevity in this statement we refer to the opinions of the Court of Appeals, which should be examined for details. We, however, must go over more or less of the evidence in discussing the points made by counsel, as well as the point made in the dissenting opinion. Having this duty imposed we leave the detailed facts to be discussed in the course of the opinion. This in a general way sufficiently states the case.

I. The principal opinion from the Court of Appeals plants itself upon the proposition that the trial court was in error in not sustaining a demurrer to the testimony. The petition charges that one of defendant's employees, in charge of and driving one of defendant's vehicles, negligently struck the wife of plaintiff, throwing her to the pavement, and inflicting such injuries as subsequently occasioned her death. Several disputed questions are suggested by the evidence, thus: (a) Was the driver upon that day in the actual service of defendant, or was he at the time using one of defendant's rigs in his own private business? There is proof both ways upon this question. (b) Another question is whether the driver ran on to plaintiff's wife, or plaintiff's wife ran into the vehicle. Upon this question the evidence is again conflicting. (c) Likewise the evidence tending to show negligence or no negligence upon the part of the driver is conflicting. (d) The same may be said of the evidence as to the alleged contributory negligence of deceased.

The principal opinion does not question the propriety of the judgment nisi upon any of these questions, but says: "The most that can be said for the plaintiff is that the whole evidence taken together shows that death resulted either from the injury received from the buggy, or from one of three chronic diseases of long standing, but which of these conditions was the cause can only be a matter of conjecture. For the foregoing reasons, in my opinion, the judgment of the lower court should be reversed."

The opinion in effect concedes that the effect of the alleged injury might have been the cause of the death. It says that there are four causes to which the death might have been attributed; this, upon the result of an autopsy held upon the body of deceased, and as testified to by the physicians holding the autopsy. This evidence indicated that the deceased was troubled with some three or more organic troubles which might cause death. The details are set forth in the opinion of Judge Tittman. Because the death might have resulted from these organic troubles or from the injury, it is held that the case falls within the field of conjecture and for that reason the demurrer should have been sustained. In the dissenting opinion of Goode, J., is set forth the evidence upon which he thinks the case was one for the consideration of the jury. This evidence in its fullness can be gathered from his opinion. But beyond what he sets out in full it must be remembered that it was shown that the plaintiff was down town in apparent good health, at the time she collided with the vehicle of the defendant. It should also be remembered that she went home and took to her bed and there remained until the date of her death, which occurred within a month of the date of the collision. She was injured on the 4th of the month and died upon the 20th. Reading the evidence for the plaintiff it appears that her attending physician said that whilst he did not know exactly what caused the death of...