Adam Hat Stores, Inc. v. Kansas City

• Citation: 307 S.W.2d 36
• Decision Date: 01 October 1957
• Docket Number: No. 22569,22569
• Parties: ADAM HAT STORES, Inc., Respondent, v. KANSAS CITY, Missouri, a Municipal Corporation, Appellant.
• Court: Court of Appeal of Missouri (US)

Page 36

307 S.W.2d 36

ADAM HAT STORES, Inc., Respondent, v. KANSAS CITY, Missouri, a Municipal Corporation, Appellant.

No. 22569.

Kansas City Court of Appeals, Missouri.

Oct. 1, 1957.

Benj. M. Powers, City Counselor, John J. Cosgrove, Associate City Counselor, Robert A. Meyers, Asst. City Counselor, Kansas City, for appellant.

Homer A. Cope, Joseph H. Glass, Donald W. Browne, Walter A. Raymond, Kansas City, for respondent.

HUNTER, Judge.

Adam Hat Stores, Inc., plaintiff-respondent herein, sued the City of Kansas City for property damage to certain of its merchandise in the sum of $3,812.49 resulting from a break in the City's water main located in the public street in front of plaintiff's store where the merchandise was kept. The cause was submitted to the jury under the res ipsa loquitur doctrine, and the jury returned its verdict for defendant. Thereafter, the trial court granted a new trial because of its alleged error in denying plaintiff's counsel the right to comment on the failure of defendant to call as witnesses the two employees of defendant City who were at the scene of the occurrence, and who, according to plaintiff's contention must have possessed some relevant knowledge as to the cause of the occurrence.

On this appeal only two questions are presented; namely, (1) does the res ipsa loquitur doctrine apply to the facts inherent in this case, and (2) did the trial judge err in granting a new trial.

The facts are relatively undisputed. On August 31, 1953, one of defendant's water mains carrying approximately 100 pounds of pressure split and cracked open and water therefrom flowed into the basement of plaintiff's store causing damage to its merchandise stored there. Plaintiff's evidence, except as it related to the amount of damages, consisted of defendant's answers to interrogatories propounded by plaintiff. In those answers defendant City stated that the pipe line in question was laid prior to 1900, no exact date being available. Its water department records showed no rupture or repairs prior to this breaking. The break occurred on the hydrant branch between the control valve in the middle of 12th Street and the hydrant located at the south curb of 12th Street, immediately in front of plaintiff's place of business. The pipe was set approximately four feet under the surface of the street. It was six-inch pipe. Defendant City owned and exercised complete and exclusive control over the installation and maintenance of all water works equipment in the public streets and the connecting water system. It did not know what caused the break.

On behalf of defendant, the testimony of E. E. Bolls, a civil engineer and specialist in water works engineering was that over 90 per cent of municipal water mains, including this one, were made of cast iron pipe. Such cast iron pipe has a minimum life expectancy of 100 years or more, and some is known to have been in service for over 300 years. Engineers never recommend replacing a water main of cast iron pipe because of its age. Once the pipe is in use in the ground there is no way to inspect it except to take it out of the ground. Corrosion is very seldom a problem. The causes of such pipes breaking are (1) excessive internal water pressure, (2) excessive impact loading to outside of pipe, (3) settlement of the soils around the pipe, and (4) electrolysis. Defendant also adduced evidence to the effect that the water pressure was normal at the time of the break: that in the opinion of its expert witnesses the break was not caused by internal water pressure, electrolysis or external loading. It could have been broken due to uneven settlement of the soils, but its witness was unable to reach any conclusion as to the actual cause of the break. The testimony also indicated that when cast iron pipe breaks it literally fractures, and very seldom has small leaks. Defendant City has over 1,000 miles of such water mains.

We first examine defendant's contention that the court erred in submitting the case under the res ipsa loquitur doctrine. Although it cites authorities in support of its contention, defendant concedes that the question of whether or not the bursting of an underground water main is in itself sufficient evidence of negligence to submit the question to the jury under the res ipsa loquitur doctrine has never been decided by the Appellate Courts of Missouri.

The water main and connecting system were owned by and were within the exclusive control of defendant which was operating them for revenue and profit, and it had the duty to maintain its water mains in a reasonably safe condition. A negligent breach of defendant's duty to maintain them in that reasonably safe condition is actionable. Lober v. Kansas City, Mo.Sup., 74 S.W.2d 815.

The res ipsa loquitur doctrine has been defined as meaning that negligence can be proved by circumstantial evidence, and that certain circumstances, as to the character of an accident, are sufficient to take a case to the jury. Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001, 1003. The basis of the allowable inference of negligence is the doctrine of probabilities. Byers v. Essex Investment Co., 281 Mo. 375, 219 S.W. 570, 571; Frazier v. Ford Motor Co., 365 Mo. 62, 276 S.W.2d 95, 98. Our Supreme Court in McCloskey v. Koplar, 329 Mo. 527, 533, 46 S.W.2d 557, 559, 92 A.L.R. 641, declared the following three conditions necessary before doctrine may be applied:

'(a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge used due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence.'

In a res ipsa loquitur case the plaintiff has the burden of proving each factual ingredient necessary for a prima facie case. McCloskey v. Koplar, supra. This does not mean that plaintiff is required to present evidence overthrowing every reasonable theory of nonliability on the part of the defendant. Warner v. Terminal Railroad Association of St. Louis, 363 Mo. 1082, 257 S.W.2d 75; Shafer v. Southwestern Bell Telephone Co., Mo.Sup., 295 S.W.2d 109, 113. Nor is it requisite in order to invoke the doctrine that plaintiff's case be such as to exclude every hypothesis but that of defendant's negligence. As stated in Cooper v. 804 Grand Bldg. Corp., Mo.Sup., 257 S.W.2d 649, 652: '* * * the attendant facts must raise a reasonable inference of a defendant's negligence (but they need not exclude every other inference). Maxie v. Gulf, Mobile & O. R. Co., 358 Mo. 1100, 219 S.W.2d 322, 10 A.L.R.2d 1273.' Or as sometimes stated, the proof should establish the desired inference with such certainty as to cause it to be the more reasonable and probable of the conclusions to be drawn. Frazier v. Ford Motor Co., 365 Mo. 62, 276 S.W.2d 95, 100. The doctrine cannot be invoked where the existence of negligence is wholly a matter of conjecture and the circumstances from which negligence may be inferred are not proved but must themselves be presumed. Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509.

Testing the case at bar by these established principles we note that in defendant's answers to interrogatories it admits that the instrumentalities involved (the operating water system including the pipe in question) were under the management and control of defendant. Certainly upon the breaking of one of its water pipes buried in its public street and functioning as a part of its water system defendant possesses superior knowledge or means of information as to the cause of the occurrence. Lober v. Kansas City, supra. A more difficult question is presented in determining whether the occurrence (the bursting of the pipe) resulting in injury was such as does not ordinarily happen if those in charge use due care. Defendant contends the evidence that a water pipe buried in the ground for over fifty years bursts for the first time permits as equally a reasonable inference as any other that the cause of the break was one for which defendant is not liable, such as the pipe breaking from settlement of the earth because of drought conditions. We acknowledge that the question presented is a close one, but we are unable to agree with defendant's conclusion. Our views in substance are coincidental with those expressed in George Foltis, Inc., v. City of New York, 174 Misc. 967, 21 N.Y.S.2d 800, loc. cit. 803: 'The water main here in question was within the control of the defendant. It was defendant who selected the pipes and laid them. Cast-iron water mains which are properly laid four feet underground ordinarily do not break, any more than ordinarily trains are derailed, missiles fly, or elevators or walls fall; and when such a main does break the inference of negligence follows in logical sequence * * *.' On further appeal in Foltis, Inc., v. City of New York, 287 N.Y. 108, 38 N.E.2d 455, 461, 153 A.L.R. 1122, 1129 the Court stated '* * * we think that both reason and the weight of authority support the ruling of the trial judge * * *. We agree that under the rule res ipsa loquitur the plaintiff's proof that its property was damaged by a break in a water main constructed and controlled by the city was sufficient to establish prima facie that the injury was due to negligence of the city.' There is some division...