Bloecher v. Duerbeck
| Decision Date | 10 March 1936 |
| Docket Number | 34089 |
| Citation | 92 S.W.2d 681,338 Mo. 535 |
| Parties | Helen Bloecher v. Mary Duerbeck, Executrix of the Estate of William Duerbeck, Appellant |
| Court | Missouri Supreme Court |
Rehearing Granted, Reported at 338 Mo. 535 at 556.
Appeal from Circuit Court of City of St. Louis; Hon. M. G Baron, Judge.
Affirmed.
Wayne Ely and Tom Ely, Jr., for appellant.
(1) The court erred in overruling defendant's demurrer to the evidence. (a) Plaintiff relied solely upon the testimony of Sam Vitale to prove the facts necessary to a recovery by her and his testimony was so contradictory and conflicting that one version thereof tended to disprove the other. There was no explanation of the contradictions, and no other fact or circumstance in the case tending to show which version of his testimony was true. Therefore, no case was made for the jury. Adelsberger v. Sheehy, 59 S.W.2d 647; United States v. Kiles, 70 F.2d 880; State ex rel. Mochnick v. Andrioli, 249 N.W. 379; Goater v. Klotz, 124 A. 83. (b) Plaintiff relied entirely upon the opinion testimony of Frank Carter and Harry A. Geaque to prove that the explosion occurred within the water sections of the furnace. Each of these witnesses retracted and denied their own positive statements, speculated, conjectured and guessed, and gave testimony of such a conflicting and contradictory character as to render a finding of facts on the opinions expressed by them nothing but a guess. Their testimony furnished no basis for a judgment, and as there was no other testimony in the case tending to prove which of the opinions of said witnesses were true the case should not have been submitted to the jury. Adelsberger v. Sheehy, 59 S.W.2d 647; United States v. Kiles, 70 F.2d 880; State ex rel. Mochnick v. Andrioli, 249 N.W. 379; Goater v. Klotz, 124 A. 83; Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 33, 53 S.Ct. 391; Polokoff v. Sanell, 52 S.W.2d 443. (c) In determining whether a man was negligent under given circumstances the courts will determine what an ordinary, reasonable and prudent person would have done under those circumstances, and will require a defendant who is charged with exercise of reasonable care, to do only what the average man would have done. Measured by this standard, plaintiff's evidence fails to show that the defendant in this case was guilty of any negligence, as he did only what the average man would have done under the same or similar circumstances. American Brewing Co. v. Talbot, 141 Mo. 674, 42 S.W. 679; Newhouse v. St. Louis Bank Bldg. & Equip. Co., 33 S.W.2d 932; Jones v. Ry. Co., 63 S.W. 94; Wecker v. Ice Cream Co., 31 S.W.2d 974. (d) Plaintiff did not prove that the alleged negligence of defendant was the proximate cause of the explosion, or that there was any causal connection between defendant's alleged negligence and the explosion. The burden was on plaintiff to furnish such evidence, and in failing to furnish it plaintiff failed in her proof. Kane v. Ry. Co., 157 S.W. 644; Pierce Oil Corp. v. City of Hope, 248 U.S. 498, 39 S.Ct. 172; Beebe v. St. Louis Transit Co., 206 Mo. 419, 103 S.W. 1019; Clark v. Granby Mining & Smelting Co., 183 S.W. 1099; Coin v. Talge Lounge Co., 222 Mo. 488, 121 S.W. 1; Coble v. Ry. Co., 38 S.W.2d 1031; Byerly v. Consolidated L. P. & Ice Co., 130 Mo.App. 593, 109 S.W. 1065. (e) Defendant had no knowledge, and could have had no knowledge, of the alleged defective condition of the heating system, and could not reasonably have anticipated that the explosion would occur. Therefore, he was not negligent and was not liable. Cash v. Sonken-Galamba Co., 17 S.W.2d 927; Korach v. Loeffel, 168 Mo.App. 414, 151 S.W. 790; Mahnken v. Gillespie, 43 S.W.2d 797; Casey v. Hoover, 114 Mo.App. 47, 89 S.W. 330; Berg v. Otis Elevator Co., 231 P. 832; Huset v. Threshing Machine Co., 120 F. 865; Heizer v. Kingsland & Douglas Mfg. Co., 110 Mo. 605, 19 S.W. 630; 45 Cyc., pp. 884, 885. (f) Plaintiff's theory of this explosion was demonstrated to be false by common knowledge of scientific facts, and her theory was impossible as a matter of mathematical computation. Established physical facts and common observation conflict with and disprove the testimony of plaintiff's witnesses, and disprove her theory of the case. Sexton v. Met. St. Ry. Co., 245 Mo. 254, 149 S.W. 25; Weltmer v. Bishop, 171 Mo. 110, 71 S.W. 167; Barr v. Nafziger Baking Co., 41 S.W.2d 559; Voorhees v. Ry. Co., 30 S.W.2d 22; Cardindale v. Kemp, 309 Mo. 241, 274 S.W. 437. (2) The court erred in interfering with defendant's counsel in the cross-examination of plaintiff's witnesses and in restricting cross-examination, and in making remarks which were prejudicial to the defendant. (3) The court erred in permitting plaintiff's witness Geaque to make a demonstration and conduct an experiment in court with a model which did not faithfully represent the heating system under consideration, and did not sufficiently reproduce the heating system so that a reliable demonstration could be given. Riggs v. Met. St. Ry. Co., 216 Mo. 304, 115 S.W. 969; Ballman v. Lueking Teaming Co., 281 Mo. 342, 219 S.W. 603; Klenk v. Klenk, 282 S.W. 153; State v. Allison, 51 S.W.2d 51. (4) The court erred in permitting plaintiff's expert witnesses Carter and Geauque to draw unwarranted conclusions, and to build inference upon inference. Cardinale v. Kemp, 309 Mo. 241, 274 S.W. 437; Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 33, 53 S.Ct. 391; Kane v. Railroad Co., 157 S.W. 644; Byerly v. Consolidated L. P. & Ice Co., 130 Mo.App. 593, 109 S.W. 1065. (5) Instruction 1 assumes that failure to equip the heating system with a thermometer and altitude gauge was actionable negligence, and assumes that if air and steam accumulated in the system, it accumulated as a result of negligence. Mahaney v. Auto Transit Co., 46 S.W.2d 821; Gleason v. Texas County, 46 S.W.2d 548. (6) The court erred in refusing defendant's instructions D and E, which instructions defined an independent contractor, and told the jury that if they found the system was installed by independent contractors they should find for defendant. Casey v. Hoover, 114 Mo.App. 47, 89 S.W. 330; Berg v. Otis Elevator Co., 231 P. 832; Huset v. Threshing Machine Co., 120 F. 865; Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo. 605, 19 S.W. 630; 45 Cyc. 884. (7) The court erred in refusing defendant's Instruction H. Instruction H was a withdrawal instruction, withdrawing from the jury the charge that defendant negligently omitted to have the heating system equipped with a suitable safety relief valve. It was conclusively established by all the evidence that the safety relief valve used in this system was a suitable valve, and under the peculiar circumstances of this case, and particularly on account of the fact that the jury were told by Instruction 1 that they might find for plaintiff even though they found the relief valve was a suitable one, if they found it was installed in a place where it was likely to freeze, this instruction should have been given and it was reversible error to refuse it. Brand v. Herdt, 45 S.W.2d 878; Estes v. Desnoyers Shoe Co., 155 Mo. 577, 56 S.W. 316; Crossno v. Terminal Railroad Assn., 41 S.W.2d 796; Willis v. Applebaum, 26 S.W.2d 823.
Kratky, Soffer, Nessenfeld & Cox for respondent.
(1) The court properly overruled defendant's demurrer to the evidence. (a) This court, on the previous appeal, on substantially the same evidence and pleadings, held that plaintiff had made a submissible case for the jury. No cogent reason appearing for disturbing that holding, it should be considered the law of the case. Clark v. Atchison & Eastern Bridge Co., 333 Mo. 721, 62 S.W.2d 1079; Scott v. Parkview Realty & Imp. Co., 255 Mo. 76, 164 S.W. 540; State of Kansas v. United States F. & G Co., 328 Mo. 295, 40 S.W.2d 1050; Mahany v. Rys. Co., 286 Mo. 601, 254 S.W. 16. (b) There was substantial evidence upon which the verdict for plaintiff was based. There was direct evidence of the improper construction of the heating system, as well as all other facts in support of the expert opinion as to the cause of the explosion. Negligence with damage directly resulting therefrom was proved. It was not necessary for plaintiff to exclude all other possible causes. The proximate cause was properly for the jury. Thompson v. Lamar, 17 S.W.2d 960; Conner v. Ry. Co., 181 Mo. 397, 81 S.W. 145; Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950; Clark v. Atchison & Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 143; State ex rel. St. Charles v. Haid, 325 Mo. 107, 28 S.W.2d 97. (c) The evidence of defendant, except in so far as it tends to aid plaintiff's case, is to be disregarded. The demurrer admits as true all evidence and inferences which may be drawn therefrom favorable to plaintiff's case and does not go to the weight of the evidence. Parrent v. Railroad Co., 334 Mo. 1202, 70 S.W.2d 1073; Hardin v. Railroad Co., 334 Mo. 1169, 70 S.W.2d 1075. The jury was at liberty to reject all or any portion of the testimony and were not required to believe defendant's evidence, even if uncontradicted. Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950; Rockenstein v. Rogers, 326 Mo. 468, 31 S.W.2d 798. (d) Even if there is any conflict between a witness's testimony at the instant trial and previous hearings, the testimony is still for the jury, the previous testimony affecting only the weight of the evidence. Parrent v. Railroad Co., 334 Mo. 1202, 70 S.W.2d 1074; Steele v. Railroad Co., 302 Mo. 207, 257 S.W. 759; Davidson v. Railroad Co., 301 Mo. 79, 256 S.W. 171; Belzer v. Sears, Roebuck & Co., 76 S.W.2d 701. (e) The evidence in support of plaintiff's case is reasonable, plausible and consonant with physical laws. A court will not reject testimony as impossible and opposed to the laws of nature except only when no other conclusion of...
To continue reading
Request your trial