Ambruster v. Levitt Realty & Inv. Co.

• Decision Date: 30 June 1937
• Citation: 107 S.W.2d 74,341 Mo. 364
• Parties: Rose Pohlman Ambruster v. Levitt Realty & Investment Company, a Corporation, Appellant
• Court: Missouri Supreme Court

107 S.W.2d 74

341 Mo. 364

Rose Pohlman Ambruster v. Levitt Realty & Investment Company, a Corporation, Appellant

Supreme Court of Missouri

June 30, 1937

Appeal from Circuit Court of City of St. Louis; Hon. John W Calhoun, Judge;

Reversed and remanded.

William R. Schneider for appellant.

(1) The plaintiff failed to sustain her burden of proof. Hence the demurrer to the evidence should have been sustained. Hamilton v. Ry. Co., 300 S.W. 792; Boone v. St Joseph, 1 S.W.2d 229. (a) Plaintiff is not entitled to base her case upon incompetent and improperly admitted evidence. Fischer v. Packing & Provision Co., 77 Mo.App. 113; McAnany v. Henrici, 238 Mo. 103, 141 S.W. 633; Wagner v. Jacoby, 26 Mo. 530; Stonam v. Waldo, 17 Mo. 489; 22 C. J., p. 519. (b) Plaintiff is not entitled to base inference upon inference in order to sustain her burden of proof. Bollinger v. Ry. Co., 67 S.W.2d 988; Hayes v. Hogan, 273 Mo. 1, 200 S.W 286; McAnany v. Henrici, 238 Mo. 103, 141 S.W. 633; Yarnell v. Ry. Co., 113 Mo. 570; Bigelow v. Met. St. Ry. Co., 48 Mo.App. 367; State v Lackland, 136 Mo. 26, 37 S.W. 812; Glick v. Kansas City, 57 Mo.App. 97; 4 Nichols, Applied Evidence, p. 4735; In re Moore's Estate, 65 Cal.App. 29, 223 P. 73. (2) Plaintiff's main instruction is erroneous because: (a) It does not require the defendant to have knowledge of the alleged danger from the alleged defective refrigerator or the repair thereof. McLeod v. Linde Air Products Co., 318 Mo. 397, 1 S.W.2d 126; Tipton v. Mfg. Co., 302 Mo. 162, 257 S.W. 791; Heizer v. Mfg. Co., 110 Mo. 605, 19 S.W. 630; Walling v. Mo. Stair Co., 227 S.W. 879; Wojtylak v. Kansas & T. Coal Co., 188 Mo. 260, 87 S.W. 512; Howard v. Railroad Co., 173 Mo. 530, 73 S.W. 469; Removich v. Bambrick Bros. Const. Co., 264 Mo. 43, 173 S.W. 689; State ex rel. v. Becker, 66 S.W.2d 525; Edwards v. Met. St. Ry. Co., 112 Mo.App. 656, 87 S.W. 587. (b) The instruction is broader than the evidence and is not supported by the evidence. State ex rel. v. Becker, 66 S.W.2d 525; Gately v. Ry. Co., 322 Mo. 1, 56 S.W.2d 54; Roberts v. Wilson, 225 Mo.App. 932, 33 S.W.2d 167; State ex rel. Berberich v. Haid, 333 Mo. 1224, 64 S.W.2d 667.

Max Sigoloff for respondent.

(1) The defendant's demurrers at the close of plaintiff's and at the close of the whole case admit the truth of the evidence and inferences which may be drawn therefrom favorable to plaintiff's case and do not go to the weight of the evidence. Parrent v. M. & O. Ry. Co., 334 Mo. 1202, 70 S.W.2d 1073; Hardin v. Ill. Cent. Ry. Co., 334 Mo. 1169; Grubb v. Curry, 72 S.W.2d 863; Smith v. Sears, Roebuck & Co., 84 S.W.2d 419; Brock v. M. & O. Ry. Co., 51 S.W.2d 100; Grubbs v. K. C. Pub. Serv. Co., 45 S.W.2d 74. (2) The appellate court in passing on demurrer to evidence searches entire testimony to see if plaintiff's case was aided by defendant's proof. Koehler v. Wells, 20 S.W.2d 31. (3) Where a defendant submits an issue to a jury by an appropriate instruction, which requires a verdict for defendant upon the finding hypothesized therein, defendant cannot on appeal complain of the insufficiency of the evidence to support an adverse verdict. Cazzell v. Schofield, 319 Mo. 1169, 8 S.W.2d 580; Anderson v. Davis, 314 Mo. 560, 284 S.W. 439; Wielms v. St. L. County Gas Co., 37 S.W.2d 454; Roush v. Hussey Lbr. Co., 27 S.W.2d 1033; Holloway v. Barnes Grocer Co., 15 S.W.2d 917; Shapiro v. American Surety Co., 259 S.W. 502; Matthews v. Leach, 255 S.W. 955. (4) Cases must be heard on appeal on the same theory as of that on which it is tried, so held by this court. Beyer v. Coca-Cola Bottling Co., 75 S.W.2d 642; Continental Cas. Co. v. Monarch Transfer & S. Co., 23 S.W.2d 209. (5) There was substantial evidence upon which the jury were justified in finding for plaintiff. While the burden of proof is on plaintiff to prove negligence, yet where the facts are not susceptible of direct proof, their existence must directly follow as a reasonable conclusion from the basic facts and circumstances shown. Kelly v. Kansas City B. & L. Assn., 81 S.W.2d 440; Fenton v. Hart, 73 S.W.2d 1034; Coble v. St. L. & S. F. Ry. Co., 38 S.W.2d 1031. (6) If a landlord has repairs done on his building and they are negligently performed, he is liable notwithstanding lack of actual knowledge. Shaw v. Butterworth, 327 Mo. 622, 38 S.W.2d 57; Upham v. Head, 74 Kan. 17; 45 C. J., pp. 1025-1026, sec. 578; Caldwell v. Travelers, 305 Mo. 620. (7) The evidence in support of plaintiff's case is reasonable, plausible and consonant with physical laws. The court will not reject testimony as impossible and opposed to the laws of nature except only when no other conclusion of reasonable minds is possible. Even mere improbability will not be sufficient. Parrent v. M. & O. Railroad Co., 334 Mo. 1202, 70 S.W.2d 1073; Hardin v. Ill. Cen. Railroad Co., 334 Mo. 1169, 70 S.W.2d 1079; Thompson v. Lamar, 17 S.W.2d 960; Doyle v. Ry. Co., 326 Mo. 425, 31 S.W.2d 1012; State ex rel. St. Charles v. Haid, 325 Mo. 107, 28 S.W.2d 97; Miller v. Collins, 328 Mo. 313, 40 S.W.2d 1062. (8) Where landlord undertakes to make repairs or improvements upon his premises he is under a duty to use reasonable care in doing the work, and cannot avoid the consequences of the negligence of his servants who did the work. Patton v. Eveker, 232 S.W. 762, 36 C. J. 217; Finer v. Nichols, 158 Mo. 545; Lasky v. Rudman, 85 S.W.2d 502; Bloecher v. Duerbeck, 333 Mo. 369, 62 S.W.2d 553; Vitale v. Duerbeck, 332 Mo. 1184, 62 S.W.2d 559; Gobrecht v. Beckwith, 135 A. 20; Shaw v. Butterworth, 327 Mo. 662, 38 S.W.2d 60. (9) The competency of witnesses to testify as experts is a question for the court to decide, and the court ruled properly in admitting the testimony of Edward McFarland regarding the operation of Electrolux refrigerators. Fullerton v. Fordyce, 144 Mo. 519, 44 S.W. 1053; Thompson v. Lamar, 17 S.W.2d 960; Jewell v. Excelsior Powder Mfg. Co., 166 Mo.App. 555, 149 S.W. 1045; Herman v. Am. Car & Foundry Co., 245 S.W. 387; Spaulding v. Kansas City Pub. Serv. Co., 16 S.W.2d 1012; Oliver v. Vandalia, 28 S.W.2d 1044.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

Action for injuries alleged to have resulted from carbon monoxide gas escaping from a gas-operated refrigerator. Verdict for $ 8,000 went for plaintiff and defendant appealed from the judgment entered.

Plaintiff alleged that she and another young woman occupied furnished apartment 304 in defendant's apartment building at 3705 Washington Avenue, St. Louis; that the refrigerator furnished was an Electrolux, "operated by the ignition of a constantly flowing stream of illuminating gas;" that the refrigerator burner and other attachments thereto were defective, which defects caused to be "created and released, dangerous, poisonous and noxious gases;" that on March 17, 1932, she was overcome by such gases escaping from the refrigerator. Then follow eight separate specifications of negligence, but plaintiff went to the jury on negligent repair of the refrigerator.

The answer was a general denial and a plea of contributory negligence. The reply, we infer, was a general denial of new matter.

Defendant assigns error (1) on refusal of its demurrer to the evidence; (2) on plaintiff's Instruction No. 1; (3) admission of alleged incompetent evidence; and (4) on an alleged excessive verdict.

We might say here that plaintiff contends that after defendant's demurrer to the evidence was refused, it went to the jury on instructions hypothesizing facts and directing a verdict for defendant, if such facts were found, and is, therefore, in no position to challenge the sufficiency of the evidence. Such is no longer the rule. [Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600.]

At the time of plaintiff's alleged injury she was employed as a bookkeeper by a furniture company. Plaintiff and Miss Lorelle Lamb occupied the apartment. Measured by the demurrer, the following facts appear: Defendant "was to take care of everything" in the apartment, in short, keep the apartment furnishings in reasonably good order. According to plaintiff, about three days prior to March 17th, she and Miss Lamb "spoke to Mr. Levitt (department manager) about the refrigerator not operating, and at that time he sent a colored man upstairs to take care of it for us; I looked at it the evening that we came home that the man had fixed the refrigerator, and found that the flame was burning. It was a yellow flame. That was three days before March 17th. I reported that the following morning to Mr. Levitt." And prior to that time they had some trouble with the refrigerator and Levitt told them to watch the flame underneath the refrigerator and if that went out to notify him at once, and according to plaintiff, the flame went out, and Levitt was notified. (It is not claimed, however, that the going out of the flame in any manner caused gas to escape. On the contrary, it appears that, when such occurred, the gas was automatically cut off.)

Plaintiff further testified that she and Miss Lamb worked at the same place; that on March 17th they arrived home about six p. m.; that "it was very cold;" that she and Miss Lamb planned to take dinner that evening at the home of plaintiff's mother; that she, plaintiff, took a bath and partly dressed, but "thought I would wait until Miss Lamb was ready before I slipped my dress on;" that when Miss Lamb went into the bathroom, she, plaintiff, "picked up a book and started to read" and fell asleep. When she awoke she had "a dreadful headache" and it was too late to go to the mother's for the dinner engagement. "We tried to pull this in-a-door bed down and that is when we noticed the great loss of strength. We had difficulty in pulling this bed out of the wall, which ordinarily was no task...