Burneson v. Zumwalt Co.

• Decision Date: 16 December 1941
• Docket Number: 36262
• Citation: 159 S.W.2d 605,349 Mo. 94
• Parties: Carl E. Burneson v. Zumwalt Company, a Corporation, Appellant
• Court: Missouri Supreme Court

159 S.W.2d 605

349 Mo. 94

Carl E. Burneson v. Zumwalt Company, a Corporation, Appellant

No. 36262

Supreme Court of Missouri

December 16, 1941

Rehearing Denied March 13, 1942.

Appeal from Circuit Court of City of St. Louis; Hon. Ernest F Oakley, Judge.

Affirmed.

Taylor Chasnoff & Willson and James V. Frank for appellant.

(1) The trial court should have sustained the demurrers offered at the close of the evidence for plaintiff and at the close of the whole case, for the reason that plaintiff's theory as to the cause of the sudden elevation of the overhead door is manifestly impossible as being contrary to all of the physical facts in evidence and to known physical laws, and for the further reason that there was no evidence to justify the submission of the case to the jury. Monroe v. C. & A. R. Co., 297 Mo. 633, 249 S.W. 644; Hickey v. Mo. Pac. R. Co., 8 F.2d 128; Spiro v. St. Louis Transit Co., 102 Mo.App. 250; Clark v. Atchison & Eastern Bridge Co., 62 S.W.2d 1079; Sexton v. Met. Street Ry. Co., 245 Mo. 254; Nugent v. Milling Co., 131 Mo. 241; Weaver v. Mobile & O. R. Co., 120 S.W.2d 1105. (2) The action of the trial court in giving and reading to the jury, on behalf of plaintiff, an instruction marked "No. 1," constitutes reversible error for the following reasons: (a) The instruction submitted to the jury a general allegation of negligence, whereas it should have been confined to the specific act of negligence pleaded. Zasemowich v. American Mfg. Co., 213 S.W. 799; Munsey v. Eagle Packing Co., 50 S.W.2d 754; Pointer v. Mountain Ry. Const. Co., 269 Mo. 104, 189 S.W. 805; Hughes v. Kiel, 100 S.W.2d 48. (b) The instruction was broader than the issues properly made by the pleadings and hypothecated facts not justified by the evidence, and ignored uncontradicted facts. Krelitz v. Calcaterra, 33 S.W.2d 909; Degonia v. St. Louis, I. M. & S. Ry. Co., 224 Mo. 564, 123 S.W. 807; Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722. (c) The instruction as given was misleading and confusing under the particular evidence in the case. Landon v. United Rys. Co. of St. Louis, 237 S.W. 496; Lee v. Shryack-Wright Grocery Co., 53 S.W.2d 406. (3) The action of the trial court in giving and reading to the jury, on behalf of the plaintiff, an instruction marked "No. 4," constitutes reversible error for the following reasons: (a) The instruction, when considered in the light of all the evidence and the instructions given at defendant's request, was misleading and confusing. See authorities 2 (c). (b) The instruction improperly and insufficiently defined the burden of proof as to contributory negligence. Robertson v. Scoggins, 73 S.W.2d 430. (c) The instruction limited the defense based upon contributory negligence, to an "act" on behalf of plaintiff and ignored the negligent "omission" relied upon by defendant as a part of its contributory negligence defense. Webster's International Dictionary. (d) The instruction is in direct conflict with defendant's Instruction 9. State ex rel. Tungent v. Shain, 340 Mo. 434, 101 S.W.2d 1; Robertson v. Scoggins, 73 S.W.2d 430; Landon v. United Rys. Co. of St. Louis, 237 S.W. 496; Lee v. Shryack-Wright Grocery Co., 53 S.W.2d 406; Crews v. Wilson, 312 Mo. 643. (4) The trial court erred in permitting the witness Chambliss, to testify, over the objection and exception of the defendant, in answer to a hypothetical question that the door might have been caused to elevate by reason of side play sufficient to disengage the lock, for the following reasons: (a) The question was too general in that it did not incorporate the entire mechanism connected with the operation of the door and did not sufficiently specify the tension on the spring nor the force or weight necessary to lower the door. Root v. K. C. Southern Ry. Co., 195 Mo. 348. (b) There was no pleading and no evidence that there was sufficient side play present to disengage the locking device. (c) The jury was thereby enabled to speculate and conjure as to the cause of the sudden elevation of the door. Watkins v. Bird-Skyes-Bunker Co., 322 Mo. 830, 16 S.W.2d 38; Hamilton v. Ry. Co., 318 Mo. 112, 300 S.W. 787; Markley v. K. C. Southern Ry. Co., 338 Mo. 436, 90 S.W.2d 409. (5) The action of the trial court in failing and refusing to give and read to the jury, at defendant's request, an instruction marked "No. 14," constitutes reversible error for the reason that there was no pleading and no evidence to the effect that the door was constructed in such manner as to permit the locking bar to slip out of the keeper by reason of any lateral movement of said door and the jury should have been instructed to disregard any such inference. See authorities, point (3). (6) The trial court erred in failing and refusing to set aside the judgment and verdict and grant defendant a new trial, for the reason that the damages awarded are excessive. O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085; Donley v. Hamm, 98 S.W.2d 966; Philibert v. Benjamin Ansehl Co., 119 S.W.2d 797.

Sigmund M. Bass and John Grossman for respondent.

(1) A manufacturer, seller or furnisher of an article is liable to third persons having no contractual relations with him for negligence in construction, manufacture or sale of such articles where the article, when applied to its intended use becomes dangerous, although not inherently so. McLeod v. Linde Air Products Co., 1 S.W.2d 122; 29 Cyc. 478; 45 C. J. 888; Heizer v. Mfg. Co., 110 Mo. 605, 19 S.W. 630; McPherson v. Buick Motor Car Co., 217 N. Y. l. c. 389; Johnson v. Cadillac Motor Car Co., 261 F. 878; Statler v. Ray Mfg. Co., 195 N.Y. 478, 88 N.E. 1063; Keep v. Natl. Tube Co., 154 F. 121; U.S. Radiator Corp. v. Henderson, 68 F.2d 87; Tayer v. York Ice Mach. Co., 119 S.W.2d 240. (2) It is not essential that defendant could have anticipated the very injury complained of, or that it could have anticipated that it would have occurred in the exact manner in which it did occur, but it is sufficient if the negligence of the defendant was the proximate cause of the injury. Buckner v. Horse & Mule Co., 120 S.W. 766, 221 Mo. l. c. 710; Dean v. K. C. Ry. Co., 199 Mo. l. c. 411, 97 S.W. 910; Harrison v. Light Co., 195 Mo. 606; McLeod v. Linde Air Prod. Co., 1 S.W.2d 122. (a) It is not necessary to show actual knowledge by the manufacturer, or the person who furnishes a defective article, of its defective construction where the knowledge may be inferred from the fact that the manufacturer had constructed the article. Jacobs v. Frank Adams Elec. Co., 97 S.W.2d 849. (b) The defendant had actual knowledge of the danger and defect in the door, and knew at least five hours before the plaintiff's injury that another person had sustained an injury in the use of the door, therefore actual knowledge was imparted to the defendant, and because thereof the evidence was sufficient to support the submission of the case to the jury. Cases cited under points (1) and (2). (3) The second amended petition stated a cause of action and the evidence offered in behalf of plaintiff supported every material allegation of said petition. Cases cited under points (1) and (2). (4) An instruction which submits a general assignment of negligence and a specific assignment of negligence in the conjunctive is not prejudicial where the petition contains the specific assignment of negligence, together with the general assignment of negligence, and where the evidence supports the specific assignment of negligence. Therefore plaintiff's instruction number one was not erroneous. McLeod v. Linde Air Prod. Co., 1 S.W.2d 122; Potterfield v. Terminal Railroad Assn., 5 S.W.2d 447; McIntyre v. St. L. & S. F. R. Co., 286 Mo. 234; Turnbow v. Rys. Co., 277 Mo. 644; Moyer v. C. & A. Ry. Co., 198 S.W. 839; Drew v. St. L. & S. F. Railroad Co., 220 Mo.App. 720; Brown v. Globe Ptg. Co., 213 Mo. 611, 112 S.W. 462; Thomas v. Wells, 267 S.W. 46; Stansberry v. McDowell, 186 S.W. 757; Moore v. McHaney, 178 S.W. 258; Plumlee v. Mach. Co., 202 S.W. 586; Maurizi v. Western Coal & Min. Co., 11 S.W.2d 268; Morrow v. Mo. Gas & Elec. Co., 286 S.W. 106; State ex rel. Shaw v. Trimble, 250 S.W. 396; McKenzie v. Randolph, 257 S.W. 126; Bracket v. Masonry Co., 326 Mo. 387; Thornton v. Union Elec. L. & P. Co., 230 Mo.App. 637. (a) Such an instruction does not broaden the issues made by the pleadings, especially where the general assignment of negligence is pleaded, as it was in the case at bar. Cases cited under point (4). (5) Plaintiff's Instruction 4, defining burden of proof, with reference to plaintiff's contributory negligence, when read together with defendant's instructions numbered 9, 10 and 11, completely, adequately and properly defines the term; said instructions supplement each other. Schweig v. Wells, 26 S.W.2d 851; Gibler v. Term. Railroad Assn., 203 Mo. 208, 101 S.W. 37; Patterson v. Evans, 254 Mo. 293, 162 S.W. 179; Kaechelen v. Barringer, 19 S.W.2d 1033; Kines v. Jameson, 277 S.W. 969; Sitts v. Daniel, 284 S.W. 857; Rudy v. Autenreith, 287 S.W. 850; Scott v. First Natl. Bank, 119 S.W.2d 929. (a) The mere phraseology is not prejudicial error if its practical bearing on the result is correct. Winter v. Supreme Lodge, 69 S.W. 662, 96 Mo.App. 1. (b) Where a mistake in the use of words, in an instruction, is so obvious that the jury could not have been misled, the error is deemed immaterial. Took v. Wells, 53 S.W.2d 389; Case v. J. C. Bridge Co., 221 S.W. 801; Grubbs v. Ray, 141 S.W. 17; Dorroh v. Holland Bank, 7 S.W.2d 374; Van Leer v. Wells, 263 S.W. 493; Meyerson v. Peoples Motorbus Co., 297 S.W. 455; Sec. 1062, R. S. 1929. (6) If expert witnesses have made personal observations as to the subject matter of the question, it is not necessary to present the facts hypothetically. City of Aurora v. Firemen's Fund, 165 S.W....