Adam Hat Stores, Inc. v. Kansas City
| Decision Date | 08 September 1958 |
| Docket Number | No. 46704,46704 |
| Citation | 316 S.W.2d 594 |
| Parties | ADAM HAT STORES, Inc., Respondent, v. KANSAS CITY, Missouri, a Municipal Corporation, Appellant. |
| Court | Missouri Supreme Court |
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.
J. Weston Miller, Mayte Boylan Hardie, Miller, Fairman & Sanford, Springfield, Utilities Attorneys for the City of Springfield, Mo., amici curiae.
Adam Hat Stores, Inc., hereinafter referred to as plaintiff, instituted this action in the Circuit Court of Jackson County to recover from Kansas City, hereinafter frequently referred to as 'the city', the sum of $3,812.49 for damage by water to certain of its merchandise resulting from a break in the city's water main located in the public street in front of plaintiff's store in which the merchandise was kept. The cause was submitted to a jury under the res ipsa loquitur doctrine. The jury returned a verdict in favor of the city, but the trial court sustained plaintiff's motion for new trial on the ground of error in denying plaintiff's counsel the right to comment in argument on the failure of the city to call as witnesses two of its employees who were at the scene of the occurrence shortly after it was discovered. The city appealed to the Kansas City Court of Appeals, wherein it urged not only error in the aforesaid ruling of the trial court, but also that no submissible case of the city's negligence was made under the res ipsa loquitur doctrine. That court ruled both assignments against the city and affirmed the order of the trial court granting plaintiff a new trial. 307 S.W.2d 36. Upon application of the city, we ordered the cause transferred to this court, primarily because of the general interest and importance of the question of the application of the res ipsa doctrine to the bursting of an underground water main owned, operated and under the exclusive control of the city--a question which, concededly, has not heretofore been directly decided in any of the appellate courts of this State.
Neither the essential facts nor the rule of res ipsa loquitur as applied in Missouri is in dispute, but the question of the applicability of the rule to the facts is a close and vexing one, as is evidenced by conflicting decisions of the courts of other states, each of which, however, turns upon some fact (or lack of fact) situation not shown in the instant case or upon an interpretation of the res ipsa doctrine as applied in that state, or nonrecognition of the doctrine in its entirety as in Michigan. 1 No useful purpose can be served by an extended restatement of either the facts or the rule of res ipsa as applied in Missouri; those have been well stated in the opinion of the Kansas City Court of Appeals, to which reference is made. Consequently, we shall briefly state the essential facts and direct our attention to the applicability of the doctrine, as challenged in a supplemental brief filed by the city and a brief filed by the City of Springfield as amicus curiae.
The city owns, operates are exercises exclusive and complete control over the installation and maintenance of its waterworks system. On August 31, 1953, one of its 6-inch cast-iron mains, laid approximately four feet below the surface of the street at some time prior to 1900, split open at a point between the control valve in the middle of 12th Street and the hydrant at the south curb in front of plaintiff's store, from which water flowed into the basement of the store and caused the damage for which plaintiff sought to recover. Neither the city nor the plaintiff knew the cause of the break. The main normally carried a water pressure of 97 to 100 pounds. The city offered no evidence as to the condition or age of the pipe when laid nor the manner or care with which it was placed in the ground or was thereafter maintained.
An expert, testifying in behalf of the city, stated: Ninety per cent of all municipal water mains are made of cast iron, which has a minimum duration expectancy of 100 years of more, and some are known to have been in service for more than 300 years. Following installation, there is no method of inspection other than to take the piping out of the ground. Engineers never recommend its replacement because of age. Corrosion is seldom a problem. Cast-iron water mains break because of (1) excessive internal water pressure, (2) excessive impact from traffic over the surface of the street to the outside of the pipe, (3) settlement of soils and (4) electrolysis. It was his opinion that the break was not due to internal pressure or excessive impact from traffic or to electrolysis (seepage of electric current from streetcar tracks). It was his further opinion that the pipe could have broken because of uneven settlement of the soils, but he was unable to reach any conclusion as to the cause.
In its supplemental brief, the city says that its water mains are maintained for the benefit of all of the people and that it is prohibited by its charter from charging more than is necessary to pay the cost of delivery, upkeep and maintenance. Actually, however, the city admitted in answer to interrogatories filed and admitted in evidence that its waterworks system was operated 'for revenue and profit.' But, be that as it may, whenever a city in its proprietary capacity operates a waterworks system for the purpose of supplying water to individuals, as is admitted in the instant case, it must assume the same responsibility for its negligence as any other private supplier of water for profit, and the question of its liability for negligence must be so determined. Lockhart v. Kansas City, 351 Mo. 1218, 175 S.W.2d 814, 815-816.
The prief of amicus curiae cites the early English case of Scott v. The London and St. Katherine Docks Company (1865), 3 H. & C. Reports 596, 601, 13 W.R. 410, 11 Jur. (N.S.) 204, 159 Eng.Rep. 665, wherein Chief Justice Erle announced the principle which later became known as the res ipsa loquitur doctrine:
Our cases, many of which are cited in the opinion of the Kansas City Court of Appeals (307 S.W.2d 36), are not in conflict with the doctrine announced by Chief Justice Erle. But attention must be given the clause 'in the absence of explanation by the defendants.' (Actually, the city made none; it advanced one or more theories by which the break could have been caused, but explicitly denied having any reasoned opinion that any one of its theories did cause it.) In any event, however, to whom should the 'explanation by the defendants' be made? And what effect does the 'explanation' have upon the submissibility of the case?
Obviously, of course, the 'explanation' is to be made to the jury or to the court if it be the trier of the fact. In this State it is well established as a general rule that the triers of the facts, under their duty to weigh the evidence, may believe or disbelieve any testimony affirmatively or defensively adduced by either of the parties, although such testimony is uncontradicted and unimpeached. State ex rel. Rice v. Public Service Commission, 359 Mo. 109, 220 S.W.2d 61, 65; Beckemeier v. Baessler, Mo., 270 S.W.2d 782, 787. And the law of this State is also clear that if it be herein determined that the breaking of the main was an occurrence that does not ordinarily happen if those in charge use due care and the cause of the break was unknown to plaintiff, and defendant had superior knowledge of or means of information as to the cause, then such evidence was sufficient to make a prima facie showing of negligence under the res ipsa doctrine, thereby raising 'a substantial factual inference of defendant's negligence which amounts to evidence as distinguished from a mere procedural presumption, that does not disappear upon the submission of evidence tending to exculpate defendant, but remains in the case as evidence sufficient to support an affirmative finding for plaintiff.' Clark v. Linwood Hotel, Inc., 365 Mo. 982, 291 S.W.2d 102, 105, and cases therein cited; Layton v. Palmer, Mo., 309 S.W.2d 561, 566.
Therefore, the essential question is: Was a prima facie case of negligence under the res ipsa doctrine shown by plaintiff? Admittedly, a water main, if properly laid and sound when laid, ordinarily would last without breaking for a minimum of 100 years, in the absence of internal or external violence. It is reasonable to infer therefore, that when the main broke after some 53 years of service, approximately one-half of its minimum expected duration, the pipe either was defective when laid, was carelessly laid or maintained or was subjected to such internal or external force as to cause it to break, or that it broke as a result of a combination of one or more of those causes.
The city selected the pipe, laid it and exclusively managed and controlled it. Under these circumstances, we are constrained to agree with the Foltis case, 21 N.Y.S.2d 800, 803, quoted with approval by the Kansas City Court of Appeals, 307 S.W.2d 36, 39: ...
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