McAnany v. Henrici
| Decision Date | 29 November 1911 |
| Citation | 141 S.W. 633,238 Mo. 103 |
| Parties | PHILLIP McANANY, by Next Friend, MARY McANANY, Appellant, v. WILLIAM C. HENRICI and CHARLES P. SHIPLEY |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Charles R. Pence, Special Judge.
Affirmed.
Guthrie Gamble & Street, Boyle & Howell and A. F. Smith for appellant.
(1) Plaintiff was entitled to go to the jury under the doctrine of res ipsa loquitur. Roberts v. Mitchell, 21 Ont App. Rep. 433; Clare v. Bank, 1 Sweeney, 539; Mullen v. St. John, 57 N.Y. 551; Barnowski v Nelson, 89 Mich. 523; Railroad v. Hopkins, 12 L. R. A. 189, and note; Vincett v. Cook, 4 Hun, 318; Burne v. Broadle, 2 Hurlst. & C. 722; Scott v. Dock Co., 3 Hurlst. & C. 596; Kerney v. R. F., L. R. 5 Q. B. 411; L. R. 6 Q. B. 759; Smethurst v. Church, 148 Mass. 261; Howser v. Railroad, 80 Md. 96; Ryder v. Kinser, 65 Minn. 85; Volmar v. Rylo, 134 N.Y. 418; Favers v. Munay, 84 N.Y.S. 558; Lubelsky v. Silverman, 96 N.Y. 1056. (2) Expert testimony is not controlling, but only in aid of the jury. Hall v. City, 138 Mo. 618. (3) The testimony of the experts was competent as expert testimony in aid of the jury. Boetter v. Iron Co., 124 Mo. 104; Combs v. Const. Co., 205 Mo. 389; Egan v. Dry Dock Co., 12 N.Y.S. App.Div. 568; Turnpike Co. v. Case, 80 Md. 36; Cook v. Castner, 63 Mass. (9 Cush.) 266; Morgan v. County, 92 Iowa 646; Bush v. Railroad, 166 N.Y. 216; Hand v. Brooklyne, 126 Mass. 324; Cate v. Frank, 112 Cal. 613; Ferguson v. County, 57 Iowa 604; Taylor v. Towne, 43 Conn. 36; McConnell v. City, 80 Iowa 295; Carr v. Railroad, 92 Hun, 74; Caven v. Bodwell, 97 Me. 381; City v. Humers, 33 Ark. 116; Sneda v. Libera, 65 Me. 343; Tremblay v. Mapes, 169 Mass. 284; Insurance Co. v. Pruitt, 75 Ind. 125; Stanwick v. Butler, 93 Wis. 430; Smith v. Guguerty, 4 Barb. 625; Bettys v. Township, 115 Mich. 228; Snyder v. Mfg. Co., 134 Ga. 324. (4) The testimony of the experts was competent, even if it was not a case for expert testimony, as an opinion upon a complexity of facts which could not be so intelligently and satisfactorily explained to the jury as to enable the jury to form an opinion as well as the witness observing the facts. 5 Ency. Ev. 520; 12 Am. and Eng. Ency. Law (2 Ed.), 422; Eyerman v. Sheehan, 52 Mo. 221; Const. Co. v. O'Brien, 81 Mo.App. 639; State v. Patrick, 107 Mo. 175.
Sebree, Conrad & Wendorff for respondents.
(1) Though the ground specified in the order sustaining the motion for a new trial may not justify the order, yet if the record in the case shows that there was error committed in the course of the trial not so specified that did justify it, the action of the court will be sustained. Miller v. Madison Car Co., 130 Mo. 517; Crawford v. Stock Yards Co., 215 Mo. 402. (2) The court erred in the giving of plaintiff's instruction number one. (3) The verdict is so excessive as to manifest bias and prejudice on the part of the jury. (4) The court erred in refusing the instruction of the respondent Henrici in the nature of a demurrer to the evidence. Frankie v. City of St. Louis, 110 Mo. 516; Whiteley v. McLaughlin, 183 Mo. 160; Coates v. Merriwether, 144 Mo.App. 89; Reinhardt v. Holmes, 143 Mo.App. 212; Pope v. Boyle, 98 Mo. 527; McCord v. St. Joseph Water Co., 181 Mo. 692; Braddelley v. Shea, 33 L. R. A. 47; Wilcox v. Hines, 100 Tenn. 524; Timlin v. Standard Oil Co., 129 N.Y. 314; Monroe v. Carlyle, 176 Mass. 199; Ward v. Hinkleman, 37 Wash. 365; Tully v. Railroad, 134 Mass. 503; Rigg v. Boston Beach Bridge Co., 158 Mass. 314. (5) The court was right in granting a new trial on the ground that it erred in admitting expert testimony offered by the plaintiff. Wigmore on Evidence, secs. 1918, 1928; Lee v. Publishers, 155 Mo. 616; Benjamin v. Railroad, 133 Mo. 289; Gutridge v. Railroad, 94 Mo. 468; Dammann v. City of St. Louis, 152 Mo. 186; Morgan v. Mfg. Co., 120 Mo.App. 590; Rossier v. Railroad, 125 Mo.App. 159; Graney v. Railroad, 157 Mo. 666; Breen v. Cooperage Co., 50 Mo.App. 213; McGrath v. Company, 197 Mo. 104; Leonard v. Storage Co., 121 Mo.App. 105; Smart v. Kansas City, 91 Mo.App. 592.
The plaintiff, on July 3, 1905, while walking along one of the principal streets of Kansas City, was struck on the head and seriously injured by the falling of a board, known as "crown molding," which had blown from a certain building presently to be described, belonging to the defendant Henrici, and occupied by defendant Shipley as his tenant. Suit was brought by the plaintiff against both of said parties to recover $ 15,000, damages for the personal injuries sustained, which it is claimed were caused by the negligence of the defendants. A trial was had which resulted in a verdict and judgment for the plaintiff, for the sum of $ 10,000. A motion for a new trial and in arrest of judgment were filed, which were by the court sustained, for the reason, assigned by the court, that it had erred in admitting certain expert testimony. From the order of the court granting the new trial, the plaintiff duly appealed the cause to this court.
The facts of the case are few, simple and practically undisputed, which are as follows:
For some time prior to the year 1903, the respondent Henrici was the owner of the building in question, located at No. 1413 Genesee street, Kansas City, Missouri, which was a frame structure, one story in height, and was about twenty-three or four years old, and had been used as a church, but subsequently by respondent Shipley for storage purposes. After the Missouri River flood of the summer of 1903, the defendant Henrici had the building repaired and repainted all over, by a firm of contractors, known as the Pelletier Construction Company, of that city. The building was located in the flood district, and for that reason the repairing before mentioned became necessary, but the crown molding previously mentioned was not affected by the waters. But the employees of the construction company testified that in repairing the building they made a thorough inspection of the entire structure, including the crown molding, and wherever they found a board off, or loose, they replaced it, and renailed all loose boards and timbers.
The painters who did the painting (two coats) for the contractors, also testified that while doing the painting they inspected and painted the entire building, including the crown molding.
Also the respondent Henrici testified that prior to the time when the repairing was done, with that object in view, he made a thorough inspection of the entire structure, crown molding included, and ascertained what repairs were necessary, and then employed said contracting company to do the work; and that after the work was completed, he again inspected it, to see if the work had been done according to contract.
Shipley, the other respondent, testified that at the time he rented the building, and frequently thereafter, he made careful inspections of the building.
After thus familiarizing themselves with the condition of the building, all the parties mentioned testified that they never saw or detected that the crown molding was loose, or otherwise in a defective or dangerous condition, prior to the time of the injury, and thought they would have seen it if any such condition existed.
Several disinterested witnesses, who had frequently passed the building during the previous years, testified that they had, in the ordinary way, while passing, observed the building and had seen no defects about it, and that they saw nothing which indicated anything to the contrary.
The testimony for the appellant was to the effect that the building, as previously stated, was an ordinary, one-story frame building, fronting west, with what is known as a gable front. The highest point of the roof, which was in the center of the building, was not shown, but it sloped equally in both directions, presenting a front in the shape of the letter V inverted. The building stood close to the property line, and the sidewalk ran along the front thereof. That prior to the time Henrici had the building repaired there were many loose weather-boards scattered all over the same, most of which were nailed back, while others were moved and were replaced with new ones. That these boards had become loose, because the nails which had held them rusted in two, probably caused by the waters of the flood. On the day of the accident the wind was quite high, but not more than what might have been expected in that climate.
I copy the following almost literally from the statement of the case, made by counsel for appellant, which the evidence tends to support, viz.:
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