Carroll v. May Department Stores Co.

• Decision Date: 06 June 1944
• Citation: 180 S.W.2d 793,237 Mo.App. 983
• Parties: J. Charles Carroll, Appellant, v. May Department Stores, Respondent
• Court: Missouri Court of Appeals

180 S.W.2d 793

237 Mo.App. 983

J. Charles Carroll, Appellant, v. May Department Stores, Respondent

Court of Appeals of Missouri, St. Louis District

June 6, 1944

Respondent's Motion for Rehearing Overruled June 23 1944. Certiorari Denied by Supreme Court September 5, 1944.

Appeal from the Circuit Court of the City of St. Louis; Hon. Robert L. Aronson, Judge.

Reversed and remanded (with directions).

Thompson Mitchell, Thompson & Young and Richard D. Shewmaker for appellant.

(1) Cases of falling objects are a type of res ipsa loquitur case well recognized in Missouri and elsewhere; the case at bar is a typical example of such cases; the plaintiff made a res ipsa loquitur case by showing that the defendant's ash stand fell from its store in an unexplained manner, striking the plaintiff's wife on the sidewalk below. Smith v. Kansas City Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548; F. W. Martin & Co. v. Cobb (8th Cir.), 110 F.2d 159; Byrne v. Boadle (Court of Exchequer), 2 H. & C. 721, 159 Eng. Reprint 299; Gallagher v. Edison Illuminating Co., 72 Mo.App. 576; Cline v. Butts, 167 Okla. 378, 29 P.2d 777. (2) The rule commonly applied in Missouri in determining whether a res ipsa loquitur case exists is applicable to the case at bar; this rule requires an accident bespeaking negligence, superior means of knowledge in the defendant, and right of control in the defendant. It is well settled in Missouri that the right of control is the important thing and that actual physical control by the defendant is unnecessary. Bender v. Weber, 250 Mo. 551, 157 S.W. 570; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; 92 A. L. R. 641; Pandjiris v. Oliver Cadillac Co., 339 Mo. 711, 98 S.W.2d 969; Kelly v. Laclede Real Estate & Investment Co., 348 Mo. 407, 155 S.W.2d 90; Keady v. Stix, Baer & Fuller Co., 15 S.W.2d 379; O'Bauer v. Katz Drug Co., 49 S.W.2d 1065; Myers v. K. C. Junior Orpheum Co., 228 Mo.App. 840, 73 S.W.2d 313; Stair v. Kane (6th C. C. A., 1907), 156 F. 100. (3) In Missouri the res ipsa loquitur rule shifts to the defendant the burden of coming forward with evidence to show the identity of the person legally responsible. The fact that the circumstances of an accident show that it may have been caused by the negligence of some third person does not relieve the defendant of this burden or prevent the application of the res ipsa loquitur rule. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 92 A. L. R. 641; 9 Wigmore on Evidence (3 Ed.), sec. 2509; Zichler v. St. Louis Public Service Co., 332 Mo. 902, 59 S.W.2d 654; Chicago, M. & St. P. Ry. Co. v. Irving (9th Cir.), 234 F. 562; Kelly v. Laclede Real Estate & Investment Co., 348 Mo. 407, 155 S.W.2d 90; Perry v. Stein, 63 S.W.2d 296; Kilgore v. Shepard Company, 52 R. I. 151, 158 A. 720; Herries v. Bond Stores, 84 S.W.2d 153; Keady v. Stix, Baer & Fuller Co., 15 S.W.2d 379; Garfinkel v. B. Nugent & Bro. Dry Goods Co., 25 S.W.2d 122; Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509; Sears, Roebuck & Co. v. Johnson (10 Cir.), 91 F.2d 332. (4) The fact that the plaintiff's evidence showed that the room from a window of which the ash stand fell was used by customers of the defendant, does not prevent the application of the res ipsa loquitur rule, or prevent from shifting to the defendant the burden of coming forward with evidence to show the identity of the person legally responsible. O'Bauer v. Katz Drug Co., 49 S.W.2d 1065; Myers v. Kansas City Junior Orpheum Co., 228 Mo.App. 840, 73 S.W.2d 313; London Guarantee & Accident Co. v. Woelfle (8th Cir.), 83 F.2d 325; Zichler v. St. Louis Public Service Co., 332 Mo. 902, 59 S.W.2d 654; Kelly v. Laclede Real Estate & Investment Co., 348 Mo. 407, 155 S.W.2d 90; Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 333, 77 L.Ed. 819; Terminal R. Assn. v. Staengel (8th Cir.), 122 F.2d 271; Kick v. Franklin, 342 Mo. 715, 117 S.W.2d 284; Glasco v. Union Electric Light & Power Co., 332 Mo. 1079, 61 S.W.2d 955. (5) Whatever the language used by the courts in stating the results of the cases, the basis of the res ipsa loquitur rule in Missouri is, and is recognized to be, necessity; the necessities of justice require the application of the res ipsa loquitur rule to the case at bar the same as in other cases of falling objects; to hold otherwise would, for all practical purposes, relieve the owners of stores from their obligation to use reasonable care to prevent large and heavy objects from falling from their premises, and would effectually prevent recovery by any person who might be injured by the falling of such an object, no matter how great the negligence of the defendant might be. Zichler v. St. Louis Public Service Co., 332 Mo. 902, 59 S.W.2d 654; Coca Cola Bottling Co. v. Munn (4th Cir.), 99 F.2d 190; Stolle v. Anheuser-Busch (1925), 307 Mo. 520, 271 S.W. 497, 39 A. L. R. 1001; Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509; Adams v. LeBow, 160 S.W.2d 826; Powell v. St. Joseph, etc., Railway Co., 336 Mo. 1016, 81 S.W.2d 957; Estes v. Estes, 127 S.W.2d 78; Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001. (6) The plaintiff made a res ipsa loquitur case by showing that the defendant's ash stand fell from its premises and struck his wife; the additional circumstances shown by the evidence far from destroying the res ipsa loquitur case, materially strengthened the inference of the defendant's negligence.

Carter, Bull & Garstang and James E. Garstang for respondent.

(1) The court did not err in granting defendant a new trial. (a) Appellant's evidence and proof eliminated the applicability of the res ipsa loquitur doctrine. Conduitt v. Trenton Gas & Elec. Co., 31 S.W.2d 21, 326 Mo. 133; Estes v. Estes (Mo. App.), 127 S.W.2d 78; Hart v. Emery, Bird, Thayer D. G. Co., 118 S.W.2d 509, 233 Mo.App. 312; McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872; Powell v. St. Joseph Ry., Light, Heat & Power Co., 81 S.W.2d 957, 336 Mo. 1016; Grindstaff v. J. Goldberg & Sons Structural Steel Co., 40 S.W.2d 702, 328 Mo. 72; Charlton v. Lovelace et al. (Mo.), 173 S.W.2d 13; Sleater v. John R. Thompson Co. (Mo. App.), 173 S.W.2d 591. (b) Appellant's evidence and proof showed such lack of control of the instrumentality involved at the time in question as to make the res ipsa loquitur doctrine inapplicable. Glasgow v. Union Elec. L. & P. Co., 61 S.W.2d 955, 332 Mo. 1079; Hart v. Emery, Bird, Thayer D. G. Co., 118 S.W.2d 509, 233 Mo.App. 312; Kapros v. Pierce Oil Corp., 324 Mo. 992, 25 S.W.2d 777, 78 A. L. R. 722; Hartnett v. May Department Stores, 85 S.W.2d 644, 231 Mo.App. 116; Kelly v. Laclede Real Estate & Investment Co., 155 S.W.2d 90, 348 Mo. 407, 138 A. L. R. 1065; Pandjiris v. Oliver Cadillac Co., 98 S.W.2d 969, 339 Mo. 711; Brown v. St. Louis Gas Co. (Mo. App.), 131 S.W.2d 354; McCloskey v. Koplar, 46 S.W.2d 557, 329 Mo. 527; Wolk et al. v. Pittsburgh Hotels Co., 284 Penn. 545, 42 A. L. R. 1081. (c) Appellant's evidence and proof were such as to indicate a lack of superior knowledge or means of information on the part of respondent as to cause the occurrence. Brown v. St. Louis Gas Co., 131 S.W.2d 354; McCloskey v. Koplar, 46 S.W.2d 557, 329 Mo. 527. (d) Appellant's evidence and proof were such that an inference could as reasonably have been drawn that the accident was due to a cause or causes other than the negligent act of the respondent and left the matter to speculation. Hart v. Emery, Bird, Thayer Dry Goods Co., 118 S.W.2d 509, 233 Mo.App. 312; McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872; Powell v. St. Joseph Ry., Light, Heat & Power Co., 81 S.W.2d 957, 336 Mo. 1017; Charlton v. Lovelace, 173 S.W.2d 13. (e) Appellant's evidence and proof pointed logically and consistently to the act of a customer or third person putting the ash stand in question to some unanticipated and unusual and extraordinary use, without actual or constructive knowledge on the part of respondent, so as to cause said ash stand to fall and injure appellant's wife, under which circumstances appellant could not be liable. Ford v. Grand Union Co. (N. Y.), 197 N.E. 266; General Box Co. v. Mo. Utilities Co., 55 S.W.2d 448, 331 Mo. 845; Hollister v. A. S. Aloe Co., 156 S.W.2d 606, 608, 348 Mo. 1055; Wright v. Kansas Structural Steel Co. (Mo. App.), 157 S.W.2d 582, 591; Ill. Cent. R. R. v. Oswald, 170 N.E. 247, 338 Ill. 270.

McCullen, J. Hughes, P. J., and Anderson, J., concur.

OPINION

McCULLEN

This action was brought by J. Charles Carroll, as plaintiff, against May Department Stores Company, as defendant, for damages resulting from injuries sustained by plaintiff's wife, Mrs. Signe A. Carroll, when she was struck on the head by a metal ash stand which fell from the eighth floor of defendant's store in the City of St. Louis. A trial before the court and a jury resulted in a verdict for plaintiff in the sum of $ 1500, but the trial court sustained defendant's motion for a new trial on the ground that plaintiff failed to make a case for the jury. From the order granting defendant a new trial plaintiff duly appealed.

The petition of plaintiff alleged that defendant operated a large department store located in a high building adjoining Seventh street between Olive street and Locust street in the City of St. Louis, Missouri; that defendant occupied, possessed managed and controlled a large part of said premises, including several floors of the building; that on August 27, 1942, plaintiff's wife, Signe A. Carroll, was walking along Seventh street on the public sidewalk adjoining said premises beneath a part of said building, and that as a direct and proximate result of the negligence of defendant, and its failure to exercise reasonable care, a large and heavy metal ash stand fell from a part of said building occupied, possessed, managed...