Belding v. St. Louis Public Service Co.

• Citation: 215 S.W.2d 506,358 Mo. 491
• Decision Date: 11 October 1948
• Docket Number: 40808
• Parties: Annie C. Belding, Respondent, v. St. Louis Public Service Company, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

215 S.W.2d 506

358 Mo. 491

Annie C. Belding, Respondent, v. St. Louis Public Service Company, a Corporation, Appellant

No. 40808

Supreme Court of Missouri

October 11, 1948

Rehearing Denied December 13, 1948.

Appeal from Circuit Court of City of St. Louis; Hon. William B Flynn, Judge.

Reversed and remanded.

Fordyce, White, Mayne, Williams & Hartman and F. W. Schwarz for appellant.

(1) The court erred in giving and reading to the jury Instruction 1 on behalf of plaintiff for the reason that this instruction gave the plaintiff the benefit of having her case submitted to the jury on the theory of res ipsa loquitur, while her proof showed the cause of the happening to be due to specific negligence, thus eliminating presumptive or inferential negligence and reducing the issue solely to specific negligence. Hoeller v. St. Louis Public Serv. Co., 199 S.W.2d 7; Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W.2d 21; Lochmoeller v. Kiel, 137 S.W.2d 625. (2) The court erred in overruling defendant's objection to the argument of plaintiff's attorney in commenting upon failure of defendant to produce witnesses for the reason that such witnesses were just as available to plaintiff as they were to defendant. Atkinson v. United Rys. Co., 286 Mo. 634, 228 S.W. 483; Rothschild v. Barck, 324 Mo. 1121, 26 S.W.2d 760; Thompson v. Boatmen's Natl. Bank of St. Louis, 347 Mo. 748, 148 S.W.2d 757. (3) The names and addresses of the witnesses were available to plaintiff. Mo. R.S.A. 847.85-847.89; State ex rel. Williams v. Buzard, 190 S.W.2d 907; Journal of Missouri Bar, August, 1947, p. 150, Report No. 34. (4) The verdict was excessive. Summa v. Morgan, 350 Mo. 205, 165 S.W.2d 390; Jenkins v. Missouri State Life Ins. Co., 334 Mo. 941, 69 S.W.2d 666; Kane v. Kaysing Iron Works, 89 S.W.2d 530; Arno v. St. Louis Public Service Co., 202 S.W.2d 787; Sullivan v. St. Louis-S.F.R. Co., 12 S.W.2d 735; Mahmet v. American Radiator Co., 294 S.W. 1014.

Oscar Habenicht for respondent; Orville Richardson of counsel.

(1) Plaintiff's evidence did not show the precise cause of the happening which injured her. Therefore, the court did not err in submitting plaintiff's case to the jury under the res ipsa loquitur doctrine. Plaintiff's evidence regarding the brakes whose application she felt or heard while at and facing toward the rear of this packed bus was a necessary part of her case relating to the cause of her fall (a violent jar and jolt) in defendant's bus. Semler v. Kansas City Public Serv. Co., 196 S.W.2d 197. (2) Even if such evidence on plaintiff's part tended to show the specific cause of the casualty, the true and precise negligent cause was left in doubt and was not clearly shown, and plaintiff, by producing such evidence, was not deprived of her right to submit her case under the res ipsa loquitur doctrine. Semler v. Kansas City Public Serv. Co., supra; Harding v. K.C. Public Serv. Co., 188 S.W.2d 60; Jones v. K.C. Public Serv. Co., 236 Mo.App. 794, 155 S.W.2d 775; Whitaker v. Pitcairn, 351 Mo. 348, 174 S.W.2d 163; Price v. Metropolitan St. Ry. Co., 220 Mo. 435, 119 S.W. 932; Kinchlow v. K.C., K.V. & W. Ry. Co., 264 S.W. 416; Fowlkes v. Fleming, 332 Mo. 718, 17 S.W.2d 511; Alewell v. E. St. Louis & S. Ry. Co., 26 S.W.2d 869; Timmons v. Kurn, 100 S.W.2d 952; Hurley v. Mo. Pac. Transp. Co., 56 S.W.2d 620; Williams v. St. Louis-S.F. Ry. Co., 337 Mo. 667, 85 S.W.2d 624; Porter v. St. Joseph Ry. L.H. & P. Co., 311 Mo. 66, 277 S.W. 913; Briscoe v. Met. St. Ry. Co., 222 Mo. 104, 120 S.W. 1162. (3) The court did not err in overruling defendant's objection to plaintiff's argument concerning witnesses available to the defendant. The argument was justified for reasons hereafter stated, and, in any event, was not prejudicial. With the burden of coming forward with evidence upon defendant, plaintiff could comment on the failure of defendant to produce such evidence in general, and that is all that the argument was. State ex rel. K.C. Public Serv. Co. v. Bland, 325 Mo. 505, 30 S.W.2d 445; Little v. Mass. N.W. Ry. Co., 118 N.E. 245. (4) Many witnesses peculiarly available to the defendant, employees or those under defendant's control, were not produced. Mr. Habenicht did not refer specifically to the witnesses on the bus. His argument was interrupted, and for all that the court or jury knew he may have intended to refer to the peculiarly available witnesses who were employees and under defendant's control. (5) Mr. Habenicht's general reference to witnesses may have related to those witnesses obtained by Ringcamp or by the policeman or by the motorman under circumstances where he could not swear that they were present at the time of the casualty. State ex rel. K.C. Public Serv. Co. v. Cowan, 203 S.W.2d 407. (6) There was no showing that before trial the plaintiff knew that the motorman had obtained the names of any witnesses. The disclosure of that fact at trial would not make them equally available to both parties. Winkler v. Pittsburgh, C.C. & St. L.R. Co., 321 Mo. 27, 10 S.W.2d 649. (7) The motorman's failure to obtain the names of more witnesses on this packed bus was subject to comment. (8) The limited right to ask certain interrogatories of the opposing litigant does not mean that all of the witnesses obtained or available to the defendant will be obtained by the plaintiff. The right to serve such interrogatories does not make the witnesses equally available. Deaver v. St. Louis Public Serv. Co., 199 S.W.2d 83; Bobos v. Krey Packing Co., 323 Mo. 224, 19 S.W.2d 630. (9) Prior to the passage of the new Civil Code a specific comment on the failure to produce a specific witness obtained by a motorman or bus driver was permissible. The new Civil Code does not enlarge rights of discovery, and therefore the comment remains proper. State ex rel. Myer v. Daues, 315 Mo. 186, 285 S.W. 986; Bright v. Sammons, 214 S.W. 425; State ex rel. Evans v. Broaddus, 245 Mo. 123, 149 S.W. 473; State ex rel. Williams v. Buzard, 354 Mo. 719, 190 S.W.2d 907; State ex rel. Thompson v. Harris, 195 S.W.2d 645; State ex rel. K.C. Public Serv. Co. v. Cowan, 203 S.W.2d 407; State ex rel. Iron Fireman Corp. v. Ward, 351 Mo. 761, 173 S.W.2d 920. (10) Where there is a question for the jury as to whether a witness is more available to one party than another, then that issue as any other may be discussed with the jury. Miller v. Collins, 328 Mo. 313, 40 S.W.2d 1062. (11) No prejudice resulted. Scott v. K.C. Public Service Co., 115 S.W.2d 518; State ex rel. St. Louis-S.F. Ry. Co. v. Cox, 329 Mo. 292, 46 S.W.2d 849; City of Kennett v. Katz Construction Co., 273 Mo. 279, 202 S.W. 558; Waeckerley v. Colonial Baking Co., 67 S.W.2d 779; Kelley v. Ill. Cent. R. Co., 352 Mo. 301, 177 S.W.2d 435; Brinkmann Realty Co. v. Deidesheimer, 201 S.W.2d 503; Mo. R.S.A., sec. 847.140. (12) The verdict is not excessive. Williamson v. Wabash Ry. Co., 196 S.W.2d 129; Hill v. Montgomery, 352 Mo. 147, 176 S.W.2d 284; Fisher v. Ozark Milk Serv. Inc., 201 S.W.2d 305; Willitts v. Chicago, B. & Q.R. Co., 221 S.W. 65; Corn v. K.C. etc. Ry. Co., 228 S.W. 78; Varley v. Columbia Taxicab Co., 240 S.W. 218; Arno v. St. Louis Public Serv. Co., 202 S.W.2d 787.

Leedy, C.J. All concur except Tipton, J., not sitting.

OPINION

LEEDY

This cause, being an appeal from the Circuit Court of the City of St. Louis, was heard and determined by the St. Louis Court of Appeals, resulting in the affirmance of a judgment against defendant (appellant). See 205 S.W. 2d 866. That court disallowed defendant's point that it was prejudicially erroneous to permit plaintiff's attorney to comment unfavorably on the failure of the defendant to produce witnesses present at the casualty and found on the bus at the very time, whose names and addresses had been obtained by the motorman. The propriety of that ruling is the single question presented on this submission. The cause reaches here upon application of defendant to transfer to this court for final determination under Art. V, § 10 of the Constitution and Rule 2.06 of this court. No question is raised as to the disposition made of two other points urged by defendant in the Court of Appeals, and we, accordingly, adopt that portion of its opinion as our own (quotation marks omitted):

This is an action for damages for personal injuries sustained by plaintiff, Annie C. Belding, while she was a passenger on a bus owned and operated by defendant, St. Louis Public Service Company. Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, for the sum of $ 7,500. Judgment was entered in accordance with the verdict; and following an unavailing motion for a new trial, defendant gave notice of appeal, and by proper steps has caused the case to be transferred to this court for our review.

The time of the accident was around 7:30 o'clock on the morning of January 31, 1945. The bus was northbound on Kingshighway, one of the principal thoroughfares in the City of St. Louis; and the accident occurred a few feet north of the point where Magnolia Avenue enters Kingshighway from the west opposite Tower Grove Park.

When plaintiff boarded the bus there were no empty seats, and she at first stood in the aisle alongside the third seat from the front. As a matter of fact, the driver testified that he had a "standing load", and for such reason had not picked up any passengers "for quite a ways south on the highway". A witness for plaintiff, Mrs. Katherine Meuser, testified that people were packed in the bus to such an extent that she "stood by the bus driver in the front".

Plaintiff expected to transfer to another bus at Southwest Avenue, and as the bus approached the point of transfer, she started making her way through the aisle towards the exit door near the rear. After the bus...