Hill v. Meyer Brothers' Drug Co.

• Decision Date: 06 July 1897
• Citation: 41 S.W. 909,140 Mo. 433
• Parties: Hill v. Meyer Brothers' Drug Company, Appellant
• Court: Missouri Supreme Court

41 S.W. 909

140 Mo. 433

Hill v. Meyer Brothers' Drug Company, Appellant

Supreme Court of Missouri, First Division

July 6, 1897

Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.

Reversed and remanded.

Karnes Holmes & Krauthoff for appellant.

(1) An instruction which assumes the existence of facts which are put in issue by the pleadings is always erroneous. Dulaney v. Refining Co., 42 Mo.App. 659; Dowling v. Allen, 88 Mo. 293; Peck v. Ritchey, 66 Mo 114; Merritt v. Given, 34 Mo. 98; Matthews v Railroad, 26 Mo.App. 75; Siegrist v. Arnot, 10 Mo.App. 197; Bank v. Crandall, 87 Mo. 208; Comer v. Taylor, 82 Mo. 341; Wilkerson v. Thompson, 82 Mo. 317; Meriwether v. Railroad, 45 Mo.App. 528; Wilkerson v. Eilers, 114 Mo. 245. (2) The second instruction assumes that plaintiff had in the past physical suffering, mental anguish, loss of sight, and deformity. And for these he asks compensation, and then it assumes that in the future he will undergo mental suffering, disfigurement, impaired vision and incapacity. And again he is to be compensated. (3) The elements of damage in this case should have been limited to the pain suffered, time lost, and permanent injury sustained. Stephens v. Railroad, 96 Mo. 207; Schroeder v. Railroad, 108 Mo. 322; Jacquin v. Railroad, 57 Mo.App. 320; Ross v. Kansas City, 48 Mo.App. 440; Rosenkranz v. Railroad, 108 Mo. 9; Bigelow v. Railroad, 48 Mo.App. 367. (4) The fourth instruction required proof of actual knowledge by plaintiff that this material was explosive, when proof of knowledge of facts which would naturally suggest it was sufficient. Maupin v. Emmons, 47 Mo. 304; Boland v. Kansas City, 32 Mo.App. 8; Vaughn v. Tracy, 22 Mo. 415; Life Ins. Co. v. Smith, 117 Mo. 261; Roan v. Winn, 93 Mo. 503; Kitchen v. Railroad, 69 Mo. 224. Notice is the means of knowledge. Lee v. Turner, 15 Mo.App. 205; Jaggard on Torts, 873, 874; Bradwell v. Pittsburg, etc., Co., 153 Pa. St. 105; Berg v. City of Milwaukee, 83 Wis. 599.

Thompson & Wilcox for respondent.

(1) It is not error for an instruction to assume facts conceded or established at the trial by both parties. State ex rel. v. Koontz, 83 Mo. 332; Davis v. Railroad, 13 Mo.App. 460; Mauerman v. Siemerts, 71 Mo. 101; Auchincloss v. Frank, 17 Mo.App. 43; Carroll v. Railroad, 88 Mo. 248; Fields v. Railroad, 80 Mo. 206; Fullerton v. Fordyce, 121 Mo. 13; Bank v. Hatch, 98 Mo. 378; Pope v. Railroad, 99 Mo. 406; Walker v. City of Kansas, 99 Mo. 653; Sackett's Instructions to Juries [2 Ed. Rev.], p. 19, sec. 17. (2) The second instruction does not assume that plaintiff had endured either physical suffering, mental anguish, loss of sight, or deformity in the past nor that he would endure mental suffering, disfigurement, impaired vision, or incapacity in the future, but only that the jury should compensate him for such of these things as they believed from the evidence he had endured or would endure, thus obliging plaintiff to convince jury of the existence of these things as a pre-requisite for compensation. Bigelow v. Railroad, 48 Mo.App. 373; Haniford v. City of Kansas, 103 Mo. 174; Railroad v. Spanier, 85 Ind. 171; 2 Thompson on Trials, p. 1482; Du Laurens v. Railroad, 15 Minn. 49, 58; Brown v. Railroad, 99 Mo. 377. (3) The amount of the verdict shows no harm was done appellant by instructions on measures of damages. Sampson v. Railroad, 57 Mo.App. 311; McGowan v. St. Louis & Steele Co., 109 Mo. 518; Blewett v. Railroad, 72 Mo. 584; Boettger v. Iron Co., 124 Mo. 105; Schmitz v. Railroad, 119 Mo. 279; Weese v. Brown, 102 Mo. 303. (4) The defense of contributory negligence can only be submitted when pleaded -- or when established by plaintiff's own testimony so fully as to enable court to declare it as a matter of law. Hudson v. Wabash, 101 Mo. 29; O'Connor v. Railroad, 94 Mo. 155; Donovan v. Railroad, 89 Mo. 147, 150; Schlereth v. Railroad, 96 Mo. 509, 514; Milburn v. Railroad, 86 Mo. 104. (5) Defendants' last instruction covering the whole case was given without any modification as to the disputed issues. Clause number 1 was given verbatim. Evans v. Kunze, 128 Mo. 679; Russell v. Ins. Co., 55 Mo. 594.

Robinson, J. Barclay, P. J., Macfarlane and Brace, JJ., concur.

OPINION

Robinson, J.

This is an action for damages predicated upon the following petition:

"Plaintiff by leave of court files its amended petition herein and says that the defendant is a corporation duly incorporated and engaged in the wholesale drug business at St. Louis, Missouri; that during the month of August, 1890, and for years prior and subsequent thereto, defendant was also engaged in said business at Kansas City, Missouri; that plaintiff on the day of August, 1890, was in the employ of said defendant as a shipping clerk in its liquor department at Kansas City, Missouri; that on said day of August, a certain chest containing certain chemical substances belonging to said defendant was in the possession of defendant at its place of business at said Kansas City, and was the property and under the control of said defendant; that said chest did not belong to said liquor department, nor did said plaintiff at the time or prior thereto have any knowledge of the contents of said chest, which fact was well known to defendant. An explosion took place on said day in said chest, and the Kansas City fire department, being summoned by defendant, removed said chest into the street adjacent to the defendant's said place of business, where said chest was broken open and its contents scattered over the street. Among the contents of said chest so scattered, as aforesaid, were large quantities of potassium and sodium, which substances are of such a nature that when put in contact with water or immersed therein, ignite and instantaneously explode. Defendant well knew the aforesaid dangerous character of said substances, yet defendant, its agents and servants, carelessly directed and permitted plaintiff to pick up said sodium and potassium and put the same into a bucket of water and negligently failed to warn plaintiff of the dangerous nature of said potassium and sodium, as aforesaid. Plaintiff had no knowledge of what said substances were or their aforesaid dangerous nature, as defendant well knew. Plaintiff at once proceeded to carry out such instruction of defendant, procured a bucket of water, picked up a piece of one of said substances, placed the same in said bucket of water, whereupon said substances exploded and struck plaintiff in the face and badly burned his face and eyes so that plaintiff was stricken down, caused intense anguish, pain and suffering, and ultimately the loss of the sight of his right eye, and was disfigured and maimed for life. Wherefore plaintiff prays judgment against defendant in the sum of twenty thousand dollars."

For answer to same, defendant filed a general denial. The case was tried by a jury under instructions and plaintiff got a verdict for $ 3,000, upon which in time a judgment was entered, and to reverse which this appeal is prosecuted. Several assignments of error have been made by appellant, but as the case is to be reversed and remanded for a new trial, we will notice only the one that seems to us to have been a substantial denial of defendant's rights, and fatal to the maintenance of plaintiff's judgment.

As noted above, defendant's answer was a general denial, and no formal plea of contributory negligence on part of plaintiff was made at any time during the entire progress of the trial, yet the defendant offered testimony tending to establish contributory negligence on part of plaintiff that was not objected to by plaintiff, and the plaintiff cross-questioned defendant's witness on the facts offered on that issue, and he in turn offered testimony tending to show that his injuries were caused without fault on his part. Not only did the defendant and plaintiff try the cause upon the theory that the question of plaintiff's contributory negligence was in issue; but the trial court so understood the issue to have been made and joined and gave instructions upon that theory, and in so doing the plaintiff at the time made no objections thereto. Relying upon the fact that the evidence of plaintiff's contributory negligence was before the jury without objection, the defendant asked appropriate instructions embodying the law on that question, all of which were refused, and the court gave in lieu thereof the following:

"Even though the jury should believe from the evidence that Lynn directed the plaintiff to pick up the contents of the box and put the same in a bucket containing water, without informing him of the explosive character of portions of said material, yet if you further believe that he was so informed by others, and from such information you believe he...