Zichler v. St. Louis Public Service Co.

• Citation: 59 S.W.2d 654,332 Mo. 902
• Decision Date: 20 April 1933
• Docket Number: 30789
• Parties: Gustav Zichler v. St. Louis Public Service Company, Appellant
• Court: United States State Supreme Court of Missouri

59 S.W.2d 654

332 Mo. 902

Gustav Zichler v. St. Louis Public Service Company, Appellant

No. 30789

Supreme Court of Missouri

April 20, 1933

Appeal from Circuit Court of City of St. Louis; Hon. Victor H Falkenhainer, Judge.

Affirmed (on condition).

T E. Francis, B. G. Carpenter and Allen, Moser & Marsalek for appellant.

(1) The petition does not state a cause of action against the defendant receiver or this appellant, for the reason that it does not state, even generally, facts constituting negligence on the part of the receiver, but seeks to invoke the res ipsa loquitur rule, while otherwise pleading a state of facts, and making specific allegations of negligence against the other defendant, such as to prevent reliance upon such rule. (a) The res ipsa loquitur rule is not properly applicable where a passenger upon a street car is injured in a collision between the car and another vehicle operating in the streets. Where the injury thus arises from the operation of two independent instrumentalities, one of which is not under the management and control of the defendant, the fundamental principle underlying the res ipsa loquitur rule is lacking. Di Leo v. St. Ry Co., 150 N.E. 891; Railroad Co. v. Rood, 163 Ill. 477, 57 Am. St. Rep. 478, 45 N.E. 238; Chicago Union Traction Co. v. Mee, 218 Ill. 9, 2 L. R. A. (N. S.) 725 75 N.E. 800; Wolf v. Chicago Union Traction Co., 119 Ill.App. 481; Potts v. Railroad Co., 33 F. 610; Blew v. Transit Co., 227 Pa. 319, 76 A. 17; Kurts v. Transit Co., 244 Pa. 179, 90 A. 525; Railroad Co. v. Gibson, 96 Pa. 83; Stangy v. Boston Elev. Railroad Co., 220 Mass. 414, 107 N.E. 933; Sandler v. Boston Elev. Railroad Co., 238 Mass. 148, 130 N.E. 104; Singer Sewing Machine Co. v. Springfield St. Ry. Co., 216 Mass. 138, 103 N.E. 283; Froio v. St. Ry. Co., 142 N.E. 255; Niland v. Boston Elev. Railroad Co., 208 Mass. 476, 94 N.E. 703; Cumberland, etc., Transit Co. v. Metz, 149 A. 4; Thurston v. Railroad Co., 137 Mich. 231, 100 N.W. 395; Riggsby v. Tritton, 129 S.E. 493; Fagan v. Rhode Island Co., 27 R. I. 51, 60 A. 472; Hawkins v. Railroad Co., 3 Wash. 592, 28 P. 1021, 16 L. R. A. 808; Union Traction Co. v. Mann, 72 Ind.App. 50, 124 N.E. 510; 45 C. J. pp. 1193, 1205, secs. 768, 773. Where the facts are such that an inference could as reasonably be drawn that the accident was due to a cause or causes other than the negligence of the defendant, no presumption of negligence on the part of defendant arises, and the res ipsa loquitur rule is inapplicable. 45 C. J. p. 1213, sec. 780; Kapros v. Pierce Oil Corp., 25 S.W.2d 781; Trotter v. Railway Co., 122 Mo.App. 405; McGrath v. St. Louis Transit Co., 197 Mo. 104; And authorities cited, supra. (b) And not only does the petition allege facts showing that plaintiff's injury was thus caused by the operation of two instrumentalities, only one of which was under the management and control of the defendant receiver, but it makes specific allegations of negligence as to the Morgan Company such as to exclude any presumption of negligence on the part of the receiver, thereby preventing plaintiff from relying upon the res ipsa loquitur rule. Sanders v. Carthage, 51 S.W.2d 531; Roscoe v. Met. St. Ry. Co., 202 Mo. 587; Poynter v. Mt. Ry. Const. Co., 269 Mo. 104; Kuhlman v. Water, Light & Transit Co., 307 Mo. 607; 45 C. J. p. 1205, sec. 773. (c) As to the defendant receiver, the petition merely alleges the relation of passenger and carrier, the collision and plaintiff's consequent injuries, and then alleges that "said collision and injury directly and proximately resulted from the negligence and carelessness of defendant Rolla Wells, his agents and servants." The last-mentioned allegation, unaided by the res ipsa loquitur rule, states no issuable facts, but constitutes a mere legal conclusion. Sabol v. Cooperage Co., 313 Mo. 542; Removich v. Construction Co., 264 Mo. 57; Kramer v. Power & Light Co., 311 Mo. 389. Consequently if, because of the facts alleged, no presumption of negligence can come to plaintiff's aid under the res ipsa loquitur rule, the petition does not state a cause of action against the receiver or appellant by merely averring the relation of passenger and carrier, the collision and plaintiff's injury. (2) It was error to submit the case on plaintiff's Instruction 1 alone, on the measure of damages. (a) In submitting the case without any instruction informing the jury as to what facts must be found in order to hold either or both of the defendants liable, plaintiff necessarily went to the jury on all of the allegations of negligence as to each defendant contained in the petition, including the bare legal conclusion as to the liability of the receiver. Crossno v. Terminal Railroad Assn., 41 S.W.2d 796; Cox v. Terminal Railroad Assn., 43 S.W.2d 571; Munsey v. Eagle Packet Co., 50 S.W.2d 754. The effect, therefore, was to erroneously submit the case to the jury as to appellant upon the theory that a presumption of negligence arose against the receiver from the mere relation of passenger and carrier, the happening of the collision, and plaintiff's injuries, as pleaded in the petition. (b) The giving of plaintiff's said Instruction 1 was further error, for the reason that it erroneously invited the jury to return a verdict for plaintiff against either defendant remaining in the case, or both, upon any charge in the petition and upon any theory of liability that the jury might conceive, thereby submitting to the jury and requiring them to determine for themselves the legal questions involved as to the liability of the respective defendants under the peculiar situation presented by the pleadings and proof. Kibble v. Ragland, 263 S.W. 507; City Trust Co. v. Crockett, 309 Mo. 683; Allen v. Transit Co., 183 Mo. 435; Kahr v. Railway Co., 117 Mo.App. 302. (3) Since the petition stated no cause of action as to the defendant receiver or appellant, appellant's demurrer to the evidence should have been sustained. Authorities cited under point 1, supra. (4) The verdict is grossly excessive. Morris v. Atlas Portland Cement Co., 19 S.W.2d 878; Spencer v. Railroad Co., 317 Mo. 504; Nelson v. Heine Boiler Co., 20 S.W.2d 906; Kiefer v. St. Joseph, 243 S.W. 104; Meyers v. Wells, 273 S.W. 110; Kleinlein v. Foskin, 13 S.W.2d 659; Pietzuk v. Kansas City Rys. Co., 289 Mo. 135; Lyons v. Met. St. Ry. Co., 253 Mo. 143. In considering the amount awarded by this verdict the court may and should take judicial cognizance of the fact that at the time of the trial below the purchasing power of money was much greater than for many years previous thereto, and that such condition continues to exist. Hurst v. Burlington Ry. Co., 280 Mo. 575; Sachse v. Highland Dairy Farms Co., 45 S.W.2d 937.

Mark D. Eagleton, John F. Clancy and Frank P. Aschemeyer for respondent.

(1) The petition states a cause of action against the receiver and this appellant: (a) It has been attacked for the first time in this court and every intendment must be indulged in its favor. Mere defects in the statement of the cause of action are cured by verdict. Phillips v. Ry. Co., 226 S.W 863; State ex rel. Schroeder & Tremayne, Inc., v. Haid, 41 S.W.2d 789; Cushulas v. Schroeder & Tremayne, Inc., 22 S.W.2d 872; State ex inf. Major v. Arkansas Lumber Co., 260 Mo. 212, 169 S.W. 145; Keith v. Am. Car & Foundry Co., 9 S.W.2d 644; Heckfuss v. Am. Packing Co., 224 S.W. 99. (b) A petition which describes the act complained of as causing the injury with reasonable certainty and sufficient clearness so as to advise the defendant of the charge he is to meet, and avers generally that the act was negligently done, is sufficient and states a cause of action. State ex rel. Schroeder & Tremayne, Inc., v. Haid, 41 S.W.2d 789; Cushulas v. Schroeder & Tremayne, Inc., 22 S.W.2d 872; Heckfuss v. Am. Packing Co., 224 S.W. 99; State ex rel. v. Reynolds, 230 S.W. 642; Rueter v. Terminal Ry. Assn., 261 S.W. 713; State v. Arkansas Lumber Co., 169 S.W. 167; State ex rel. Hopkins v. Daues, 6 S.W.2d 893; Hill v. Mo. Pac. Ry. Co., 121 Mo. 477; Kramer v. Kansas City P. & L. Co., 311 Mo. 369. (c) The facts pleaded invoke the doctrine of res ipsa loquitur, and a presumption of negligence arises against appellant. Gibson v. Wells, 258 S.W. 1; Cecil v. Wells, 259 S.W. 844; Stauffer v. Railroad, 243 Mo. 305; Clark v. C. & A. Railroad Co., 127 Mo. 197; Olsen v. Citizens Ry. Co., 152 Mo. 426; Yates v. United Rys. Co., 222 S.W. 1034; Nagel v. United Rys. Co., 169 Mo.App. 284; Augustus v. Ry. Co., 153 Mo.App. 572, 134 S.W. 22; Williamson v. Railroad Co., 133 Mo.App. 375, 113 S.W. 239; Malone v. Greyhound Lines, Inc., 22 S.W.2d 199; Osgood v. Traction Co., 137 Cal. 280, 70 P. 169; Hansel v. Pac. Electric Railroad Co., 167 Cal. 245, 139 P. 73; Railroad Co. v. Kuhn, 86 Ky. 578, 6 S.W. 441; London v. Railroad Co., 162 N.Y. 380, 56 N.E. 988; Plumb v. Railroad Co., 233 N.Y. 285, 135 N.E. 504; Railroad Co. v. Harrell, 58 Ark. 454, 25 S.W. 117; Biddle v. Riley, 118 Ark. 206, 176 S.W. 134; Hodge v. Sycamore Coal Co., 82 W.Va. 106, 95 S.E. 808; Railroad Co. v. Kaskell, 78 Md. 517, 28 A. 410; North Jersey St. Ry. Co. v. Purdy, 142 F. 955; Shay v. Railroad Co., 66 N. J. L. 334, 49 A. 547. (2) There was no error in submitting the case on plaintiff's Instruction 1 alone, on the measure of damages. (a) No exception was saved to the action of the trial court in submitting this case to the jury without an instruction outlining a theory of recovery, and no assignment of error in this respect was made in the motion for a new trial. In this state of the record the matter cannot now be considered on appeal. Sullivan v. Ry. Co., 12 S.W.2d 735; Hayes v. Sheffield Ice Co., 221 S.W. 705; Wertz v. Railroad Co., 40 S.W.2d 515; Lee v. W. E. Fuetterer Battery & Supplies Co., 23 S.W.2d 45. (b) Plaintiff is under no...