Fassi v. Schuler

• Decision Date: 13 March 1942
• Docket Number: 37109
• Parties: Angelo Fassi, Appellant, v. Anton Schuler
• Court: Missouri Supreme Court

159 S.W.2d 774

349 Mo. 160

Angelo Fassi, Appellant, v. Anton Schuler

No. 37109

Supreme Court of Missouri

March 13, 1942

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.

Reversed and remanded.

Morris A. Shenker and Glenn L. Moller for appellant.

(1) The court erred in permitting defendant to introduce evidence that there was a compartment next to plaintiff's room containing containers of alcohol and electric wires connected to a switch, for said evidence was highly prejudicial, and was irrelevant to the issues in this case. The defendant's admitted failure to provide fire escapes was the proximate cause of the plaintiff's injury, so evidence of negligence occurring thereafter is irrelevant under the pleadings, for contributory negligence must be pleaded and proved. Scheibe v. Fruin-Colnon Cont Co., 324 Mo. 375, 23 S.W.2d 44; Thornton v. Union Elec. L. & P. Co., 230 Mo.App. 637, 72 S.W.2d 161; Ward v. City of Portageville, 106 S.W.2d 497; Setzer v. Ulrich, 90 S.W.2d 154; Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389, 41 S.W.2d 543. (2) The court erred in permitting counsel for defendant to ask, and in requiring plaintiff to answer, questions with reference to plaintiff's knowledge of the existence of the compartment, as said questions were solely designed to prejudice the jury, and were not asked in good faith. State v. Burris, 194 Iowa 628, 190 N.W. 38, 41; State v. King, 53 N.D. 95, 204 N.W. 969; People v. Edgar, 34 Cal.App. 459, 167 P. 841; Schroeder v Rawlings, 344 Mo. 630, 127 S.W.2d 678; O'Shea v. Opp, 341 Mo. 1042, 111 S.W.2d 40. (3) The verdict is against the evidence. In the absence of any evidence to sustain a verdict, it is the duty of the court to set it aside, and grant a new trial. While granting a new trial is discretionary, court must not act arbitrarily. Ottomeyer v. Pritchett, 178 Mo. 160, 77 S.W. 62; Castorina v. Herrman, 340 Mo. 1026, 104 S.W.2d 297. (4) The court erred in giving and reading to the jury defendant's Instruction 3. (a) The instruction, in permitting the jury to find that plaintiff could not recover if he "knew of the contents of the compartment and knew of the danger thereof," amounted to telling the jury that if he knew of the allegedly negligently dangerous condition, that he assumed the risk of injury from it. The doctrine of assumption of risk is inapplicable where negligence, primary or contributory, is present. Furthermore, assumption of risk is an affirmative defense and must be pleaded. Burt v. Nichols, 264 Mo. 1, 173 S.W. 681; August Vierman Brick Co. v. St. L. Contracting Co., 335 Mo. 534, 73 S.W.2d 734; Curtis v. McNair, 173 Mo. 270, 73 S.W. 167; Page v. City of Fayette, 233 Mo.App. 37, 116 S.W.2d 578. (b) The instruction permitted the jury to find that there were "numerous cans, kegs, barrels and electric wires and switches connected to said barrels and kegs containing alcohol." This was erroneous, for the record is devoid of any evidence whatever that the wires were connected to the containers. There was absolutely no showing of the condition of the wires or insulation prior to the fire, and the condition after the fire cannot be presumed to be the same as that existing before the fire. State ex rel. Mo. Pub. Util. Co. v. Cox, 298 Mo. 427, 250 S.W. 551; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31; Conduitt v. Trenton G. & E. Co., 326 Mo. 133, 31 S.W.2d 21; Snowwhite v. Met. Life Ins. Co., 344 Mo. 705, 127 S.W.2d 718; Feldewerth v. Great Eastern Oil Co., 149 S.W.2d 410, 413. (c) The instruction erroneously permitted the jury to find that plaintiff "knew of the contents of said compartment, and knew of the danger thereof." (d) There was not a scintilla of evidence that plaintiff knew of the contents of the compartment, or even of its existence. An instruction cannot permit the finding of facts of which there is no evidence. Gunderlach v. Compagnie Generale Transatlantique, 41 S.W.2d 1; Kadderly v. Vossbrink, 149 S.W.2d 869. (e) The instruction assumes instead of requiring the jury to find, the most essential factor in defendant's defense, namely, that the contents of the compartment were dangerous. Such an instruction is erroneous. Hunt v. St. Louis, 278 Mo. 213, 211 S.W. 673; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559; Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562. (f) Furthermore, there was not one word of testimony that the contents of the compartment were dangerous, so the jury could not find that there was a dangerous condition even if the instruction had not assumed it. (5) The instruction erroneously permits the jury to find that "said fire was caused to start or ignite as a result of the contents of said compartment," for the record is devoid of evidence to support such a finding. There is no evidence, direct or circumstantial, that the contents of the compartment caused the fire to ignite. State ex rel. Mo. Pub. Util. Co. v. Cox, 298 Mo. 427, 250 S.W. 551; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31.

J. Edward Gragg for respondent; M. G. Baron of counsel.

(1) There being a complete failure of proof by plaintiff, defendant's demurrer at end of plaintiff's case should have been sustained. The mere proof of negligence and injury is not sufficient to render negligent party liable to injured party, but there must be proof also from which a causal connection appears between the negligence and the injury, and that such negligence is the proximate cause of injury, regardless of whether the negligent act arises from situations such as violations of an ordinance, statute or rule of law, constituting such act negligence per se, or from violation of some duty under general principles of law. McWhorter v. Dahl Chevrolet Co., 88 S.W.2d 240; Krelitz v. Calcaterra, 33 S.W.2d 909; Larsen v. Webb, 58 S.W.2d 967; Weeks v. McNulty, 101 Tenn. 495, 43 L. R. A. 185; Sluder v. St. Louis Transit Co., 189 Mo. 107, 88 S.W. 648, 5 L. R. A. (N. S.) 186, note L. R. A. 1915E, 500; Burt v. Nichols, 264 Mo. 1, 173 S.W. 681, L. R. A. 1917E, p. 250; Conway v. Monidah Trust, L. R. A. 1915E, 500, 47 Mont. 269, 132 P. 26. (2) A plaintiff cannot recover for injuries resulting from his own wrongdoing. Cooley on Torts, Students Ed., sec. 18, p. 48; Riggs v. Palmer, 115 N.Y. 506, 12 Am. St. Rep. 819, 5 L. R. A. 340; New York Mut. Life Ins. Co. v. Armstrong, 117 U.S. 591. (a) Such wrongdoing may be established by circumstantial evidence, and a jury may base its verdict wholly on circumstantial evidence even though opposed by direct and positive evidence. Jones on Evidence (3 Ed.), sec. 899, and note 31, p. 1425, and cases there cited. (b) The jury may take into consideration admissions of plaintiff, and such admissions are not limited to any particular form. They may not only be in the form of declarations, verbal or written, but may be implied from the conduct or acts of parties as well as from their language. Jones on Evidence (3 Ed.), sec. 287, p. 430; Hickman v. Union Elec. L. & P. Co., 226 S.W. 570. (c) So may a jury take into consideration any conduct or indications which show or tend to show a consciousness of guilt by a person suspected or charged with crime or wrongdoing who may after such indications be suspected or charged; and such conduct is admissible evidence against him. Jones on Evidence (3 Ed.), sec. 287, p. 431; United States v. Kulp, 210 F. 249; State v. Glassock, 232 Mo. 278, 134 S.W. 549; State v. Wisdom, 119 Mo. 539, 24 S.W. 1047; State v. McLaughlin, 149 Mo. 19, 50 S.W. 315. (3) The verdict of the jury being supported by the evidence and being in favor of the right party should not be disturbed by the appellate court. In determining sufficiency of evidence to sustain the verdict, the evidence must be accepted in the light most favorable to the party successful below. Lewis v. St. Louis Independent Packing Co., 3 S.W.2d 244. Every fair and reasonable inference of fact which the evidence will bear should be made to support the verdict of the jury. Landau v. Pacific Mut. Life Ins. Co., 305 Mo. 542, 267 S.W. 370. In reviewing a verdict based on conflicting evidence, that of the prevailing party must be taken as true as well as all reasonable inferences deducible from such evidence. Hunter v. American Railway Express Co., 4 S.W.2d 847; Banks v. Empire Dist. Elec. Co., 4 S.W.2d 875; Grandberg v. King, 81 S.W.2d 981; Lester v. Tyler, 69 S.W.2d 633.

OPINION

Tipton, P. J.

This is an action for damages for personal injuries. The sole allegation of negligence in appellant's petition was failure of respondent to equip a three story boarding house with fire escapes, as required by Chapter 118, Article 2, of Revised Statutes 1939. The respondent's answer was a general denial. The verdict of the jury and the judgment entered thereon were in favor of the respondent. From this judgment the appellant has duly appealed.

The appellant assigns as error the admission of evidence, the giving of an instruction at the request of respondent, and the prejudicial argument of respondent's attorney. The respondent's contention that his demurrers to the evidence should have been sustained will necessitate a review of the evidence.

The evidence shows that a building located at 3966 Lindell Boulevard, in St. Louis, Missouri, caught fire on March 1 1937, early in the morning. This building was a three story brick house owned by respondent, and was operated as a lodging or rooming house by Mrs. Angelina Calvetti. At least two of the rooms above the first floor had gas stoves. In all, there were seven separate rooms above the first floor, each occupied by a different tenant who paid weekly rent to Mrs. Calvetti. Appellant rented a room on the third floor at the rear of the building. On March 1, 1937, while appellant was still in bed, a fire broke out in this...