Bloecher v. Duerbeck

• Citation: 62 S.W.2d 553
• Decision Date: 03 August 1933
• Docket Number: No. 30723.,30723.
• Parties: HELEN BLOECHER v. ESTATE OF WILLIAM DUERBECK, Appellant.
• Court: United States State Supreme Court of Missouri

62 S.W.2d 553

HELEN BLOECHER v. ESTATE OF WILLIAM DUERBECK, Appellant.

No. 30723.

Supreme Court of Missouri, Division One.

August 3, 1933.

Appeal from Circuit Court of City of St. Louis. — Hon. Claude C. Pearcy, Judge.

REVERSED AND REMANDED.

Ely & Ely for appellant.

(1) There was no competent evidence to sustain the verdict. (a) The explosion, resulting in the injury, may have been caused by any one of several things, combustion of volatiles in the fire box, the sudden admission of cold water in the hot system, or by excessive pressure, and where defendant could be held liable for only one of these causes, and plaintiff does not show with reasonable certainty that the cause for which defendant would have been liable produced the explosion the court will not allow a verdict, based upon such speculation and conjecture, to stand. Kane v. Missouri Pacific, 157 S.W. 644; Coin v. John H. Talge Co., 121 S.W. 6; Marlowe v. Kilgren, 252 S.W. 424; Clark v. Granby Mining Co., 183 S.W. 1099; Byerly v. Consolidated Light Co., 109 S.W. 1067; Trigg v. Ozark Land Co., 86 S.W. 222; Rogers v. Hammond Packing Co., 150 S.W. 556; Warner v. Railroad Co., 77 S.W. 69; Hamilton v. Railroad Co., 300 S.W. 791; Smith v. Railroad, 164 S.W. 132; Fowler v. Sante Fe Elevator Co., 127 S.W. 616. (b) The verdict of the jury was based upon a finding of facts which were unbelievable and contrary to nature, and the verdict cannot stand. Daniels v. K.C. Elevated Ry., 164 S.W. 154; Scroggins v. Met. St. Ry. Co., 120 S.W. 731; 10 R.C.L. 1009; Sexton v. Railway, 149 S.W. 21, 245 Mo. 254; Weltmer v. Bishop, 71 S.W. 169, 65 L.R.A. 584. (c) The facts necessary for defense, justifying the appellate court to convict the trial court of error in refusing to direct a verdict for defendant, were conceded by plaintiff in her testimony, and plaintiff's testimony, in connection with her theory of the cause of the explosion, was unbelievable and contrary to the physical facts necessary to support her theory. Wolfgram v. Modern Woodmen of Amer., 149 S.W. 1167; Ray v. Wabash Railroad, 232 S.W. 268; Miller v. Wilson. 288 S.W. 997; Spiro v. Transit Co., 76 S.W. 684; Hamilton v. Frisco, 300 S.W. 787. (2) Defendant's demurrers should have been sustained, as the evidence is undisputed that Murphy and Tecklin were independent contractors for defendant, selected with ordinary care, and it was their negligence, if any, in installing the Arcola system that caused the explosion, the only theory on which plaintiff seeks to recover, and they were responsible therefor, if there was any liability, and defendant is not responsible. Gayle v. Mo. Car Foundry Co., 76 S.W. 987; Crenshaw v. Ullman, 20 S.W. 1078, 113 Mo. 639; O'Hara v. Laclede Gas Co., 148 S.W. 884, 244 Mo. 395, 10 S.W. 642; City of Independence v. Slack, 34 S.W. 1094, 134 Mo. 66; McGrath v. St. Louis, 114 S.W. 611, 215 Mo. 191; Fink v. Furnace Co., 82 Mo. 276; Schroer v. Brooks, 224 S.W. 56; Timmerman v. St. Louis Iron Co., 1 S.W. (2d) 795; Loth v. Columbia Theater Co., 94 S.W. 847, 197 Mo. 328. (a) Defendant exercised ordinary care in selecting the independent contractor to install the heating system. McDermott v. Ry. Co., 30 Mo. 115; Mullich v. Brocker, 97 S.W. 549. (b) Where the facts are undisputed the court should determine, as a matter of law, that the relation of independent contractor exists. Timmerman v. St. Louis Iron Co., 1 S.W. (2d) 796; Baker v. Scott Co., Milling Co., 20 S.W. (2d) 494; West Lumber Co. v. Powell, 221 S.W. 339. (3) The court erred in refusing Instruction C offered by the defendant over defendant's objection and exception at the time. The Instruction C, withdrawing the charge of negligence from the jury that defendant failed to exercise ordinary care in the choice of his agents, servants and employees, whom he selected to install the heating system, and that they could not return a verdict for the plaintiff on that ground, should have been given, for the reason that the evidence wholly failed to support that charge. Latham v. Hosch, 233 S.W. 85; Roseman v. United Rys. Co., 194 S.W. 1088, 197 Mo. App. 337; Kendrick v. Ryus, 123 S.W. 937; Allen v. Lumber Co., 157 S.W. 661; Bonnarens v. Lead Belt Ry., 273 S.W. 1043. (4) The court erred in refusing Instruction D offered by the defendant over the objection and exception of the defendant at the time. The defendant was entitled to this instruction presenting an issue of his defense to the jury, to the effect that if they found that the explosion mentioned in the evidence took place in the firebox of the furnace and not within the system itself, their verdict must be for the defendant. Taylor v. Wells, 7 S.W. (2d) 424; Kane v. Railroad, 157 S.W. 644; Coin v. John H. Talge Co., 121 S.W. 6; Marlowe v. Kilgren, 252 S.W. 424; Clark v. Granby Mining Co., 183 S.W. 1099; Byerly v. Consolidated Light Co., 109 S.W. 1067; Trigg v. Ozark Land Co., 86 S.W. 222; Rogers v. Hammond Packing Co., 150 S.W. 556; Warner v. Railroad Co., 77 S.W. 69; Hamilton v. Railroad Co., 300 S.W. 791; Smith v. Railroad, 164 S.W. 132; Fowler v. Sante Fe Elevator Co., 127 S.W. 616; Daniels v. K.C. Elevated Ry., 164 S.W. 154; Scroggins v. Met. St. Ry. Co., 120 S.W. 731; 10 R.C.L. 1009; Sexton v. Railway, 149 S.W. 21, 245 Mo. 254; Weltmer v. Bishop, 71 S.W. 169, 65 L.R.A. 584; Wolfgram v. Modern Woodmen of Amer., 149 S.W. 1167; Ray v. Wabash Railroad, 232 S.W. 268; Miller v. Wilson, 288 S.W. 997; Spiro v. Transit Co., 76 S.W. 684; Hamilton v. Frisco. 300 S.W. 787.

Kratky, Spencer, Soffer, Metz & Nessenfeld for respondent.

(1) There was substantial evidence to sustain the verdict. (a) Where there is substantial evidence that an accident has occurred in one of several ways, a jury question is presented, and not a mere case of conjecture. There was substantial testimony that the explosion was caused by excessive pressure within the system. It was not necessary for plaintiff to exclude all other possible causes. Thompson v. City of Lamar, 17 S.W. (2d) 960; Conner v. Ry. Co., 181 Mo. 397, 81 S.W. 145. (b) The verdict of the jury was based upon the testimony and a finding of facts which was clearly reasonable. Appellate courts may reject testimony as manifestly impossible and opposed to physical laws only when no other conclusion by reasonable minds is possible. Thompson v. City of Lamar, 17 S.W. (2d) 960; Miller v. Collins, 328 Mo. 313, 40 S.W. (2d) 1062; State ex rel. St. Charles v. Haid, 325 Mo. 107, 28 S.W. (2d) 97, (c) There is no limit to the number of inferences that can be drawn where each rests on its own facts and is not based upon a preceding inference. Cregger v. St. Charles, 11 S.W. (2d) 750; State ex rel. St. Charles v. Haid, 325 Mo. 107, 28 S.W. (2d) 97; Martin v. Railway Co., 46 S.W. (2d) 149. (d) A jury may draw an inference from testimony in the face of positive testimony to the contrary. Martin v. Ry. Co., 46 S.W. (2d) 149. (e) The jury were not obliged to accept defendant's explanation of the cause of the explosion. They were at liberty to reject all, or any portion, of the testimony. Rockenstein v. Rogers, 326 Mo. 468, 31 S.W. (2d) 798. (2) The court did not err in overruling the instructions in the nature of a demurrer, on the ground that Murphy and Tecklin were independent contractors. (a) Where the contract of employment is oral, as in this case, and there are facts and circumstances from which different inferences may legitimately be drawn concerning the obligations under the contract, it is for the jury to determine whether the relationship of independent contractor exists. Thomassen v. West St. Louis W. & L. Co., 251 S.W. 453; Same case in 312 Mo. 150, 278 S.W. 979; Hoelker v. Am. Press Co., 317 Mo. 64, 296 S.W. 1008. (b) Where the negligence which contributes to cause the injury is in the plans and specifications furnished by the employer, responsibility cannot be shifted to the contractor. In this case, defendant directed Murphy and Tecklin to put in a system like Mrs. Yoakum's, hence liability cannot be evaded. Horner v. Nicholson, 56 Mo. 220; Lancaster v. Conn. Mut. Life Ins. Co., 92 Mo. 460, 5 S.W. 23; Brannock v. Elmore, 114 Mo. 55, 21 S.W. 451. (c) Where the work is subject to unusual danger unless precautions are taken, liability cannot be evaded by employing an independent contractor. Mallory v. Louisiana Pure Ice & Supply Co., 6 S.W. (2d) 617; Eberson v. Continental Inv. Co., 130 Mo. App. 296, 109 S.W. 62. (d) The doctrine of independent contractor has no application to a case such as the instant one, where the landlord undertakes to make repairs or improvements. Vollrath v. Stevens, 202 S.W. 283. (3) The court did not err in refusing Instruction D offered by the defendant. (a) The instruction that if they found the explosion took place in the fire box their verdict must be for the defendant, singled out certain portions of the testimony and commented upon the evidence. Zumwalt v. Railroad Co., 266 S.W. 717; Benjamin v. Met. St. Ry. Co., 245 Mo. 598, 151 S.W. 91; First Natl. Bank of Warsaw v. Thomas L. Currie, 44 Mo. 91; Blair v. Railway Co., 31 Mo. App. 224; Moffett v. Butler Mfg. Co., 46 S.W. (2d) 869. (b) The offered instruction was erroneous, because it did not exclude the negligence of defendant. In effect it directed a verdict against plaintiff, even if the defendant was negligent. Vessels v. Kansas City L. & P. Co., 219 S.W. 80. (c) There was no substantial evidence upon which to base the instruction. The testimony of the witnesses who advanced that theory was conjectural and speculative. Gundelach v. Compagnie Generale Transatlantique, 41 S.W. (2d) 1. (d) The offered instruction was broader than the pleadings. Instructions should submit to the jury only those issues which are raised by the pleadings. State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722.

STURGIS, C.

The plaintiff, a young lady aged nineteen, brought this suit by her next friend for personal injuries against William Duerbeck, who died after the...