Fitzjohn v. Ozark Mountain Distilling Co.
| Decision Date | 11 April 1949 |
| Docket Number | 41008 |
| Citation | 221 S.W.2d 146,359 Mo. 154 |
| Parties | Maggie Fitzjohn, Respondent, v. Ozark Mountain Distilling Company, a Corporation, Appellant |
| Court | Missouri Supreme Court |
Opinion Modified on Court's Own Motion and Motion to Transfer to Banc Overruled June 13, 1949.
Appeal from Jasper Circuit Court; Hon. Walter E. Bailey Judge.
Reversed.
The facts and holding of the case are adequately summarized by the headnote.
Bond & Bond and Seiler, Blanchard & Van Fleet for appellant.
(1) Under the general principles governing the application of the doctrine res ipsa loquitur, the plaintiff failed to make out a submissible case under the doctrine. McCloskey v. Koplar, 329 Mo. 574, 46 S.W.2d 557; Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001; Mueller v. St. Louis Public Serv. Co., 214 S.W.2d 1; Charlton v. Lovelace, 173 S.W.2d 13, 351 Mo. 364. (2) Under the limited application of the doctrine res ipsa loquitur to master-servant cases, the plaintiff failed to make a submissible case. Gordon v. Muehling Packing Co., 40 S.W.2d 693, 328 Mo. 123; Jenkins v. Kansas City, 91 S.W.2d 98, 230 Mo.App. 337; Charlton v. Lovelace, 173 S.W.2d 13, 351 Mo. 364; Stewart v. St. L.-San Francisco Ry. Co., 30 S.W.2d 1000, 326 Mo. 293. (3) To make a submissible case under the doctrine res ipsa loquitur, the facts concerning the accident, as shown by the evidence, must be susceptible of a reasonable inference of defendant's negligence, and must reasonably exclude any other hypothesis than that defendant's negligence, and not that of some other person, caused the accident and injury. The evidence in this case fails to meet these tests, and therefore the plaintiff did not make a case for the jury. Charlton v. Lovelace, 173 S.W.2d 13, 351 Mo. 364; Grindstaff v. J. Goldberg & Sons Structural Steel Co., 328 Mo. 72, 40 S.W.2d 702; O'Gara v. Transit Co., 204 Mo. 724, 103 S.W. 54, 12 L.R.A. (N.S.) 840, 11 Anno. Cas. 850.
Norman, Foulke & Warten for respondent.
(1) In determining whether respondent made a case for the jury, all of the evidence must be considered and in a light most favorable to respondent's contentions. Holmes v. McNeil, 203 S.W.2d 665. (2) When a motion for directed verdict is overruled at close of plaintiff's case and defendant offers evidence in defense, error, if any, in the action of the court in overruling the motion is waived and cannot be raised on appeal. Elles v. Kansas City Public Serv. Co., 203 S.W.2d 475. (3) The permissible fact inference of negligence under the doctrine of res ipsa loquitur is sufficient to take the case to the jury, regardless of the evidence offered by appellant. Evans v. Missouri Pacific R. Co., 342 Mo. 420, 116 S.W.2d 8; Whitaker v. Pitcairn, 351 Mo. 848, 174 S.W.2d 163; Henneke v. Gasconade Power Co., 236 Mo.App. 100, 152 S.W.2d 667. (4) This case was properly submitted to the jury under the doctrine of res ipsa loquitur. All of the elements which are necessary for the application of the rule were present. McCloskey v. Koplar, 46 S.W.2d 557; Belding v. St. Louis Public Serv. Co., 205 S.W.2d 866. (5) The application of the doctrine of res ipsa loquitur is not determined by the relationship of the parties, and if the proper facts appear, the doctrine applies the same in a master and servant case as in any other case. Gordon v. Muehling Packing Co., 328 Mo. 123, 40 S.W.2d 693; Foster v. Kansas City, C.C. & S.J.R.R. Co., 25 S.W.2d 770; Whitaker v. Pitcairn, 174 S.W.2d 163; Maxie v. Gulf, M. & O. Ry. Co., 202 S.W.2d 904. (6) No inference could reasonably be drawn from the evidence offered by the respondent that a terrific explosion occurred in appellant's distillery, killing her husband, except that this happening was such an unusual and extraordinary occurrence, that it could not have taken place but for some negligence for which the appellant was responsible. Even though appellant's evidence may tend to show a cause for the happening for which appellant may not be liable, this showing does not affect the fact inference to which respondent is entitled. Jenkins v. Kansas City, 230 Mo.App. 337, 91 S.W.2d 98. See, also Authorities under Points and Authorities (3).
Bradley, C. Dalton and Van Osdol, CC., concur.
Action for damages for the alleged wrongful death of plaintiff's husband; verdict and judgment went for plaintiff for $ 9,000; defendant's motion for a new trial was overruled and this appeal followed.
Deceased was an employee in appellant's distilling plant in Jasper County, and was killed when the doubler tank exploded. Respondent's case was submitted under the res ipsa loquitur rule. Appellant, in its answer, denied that it was guilty of any negligence contributing to the death of deceased, and alleged that the death of deceased was caused and contributed to by his own negligence, and contends that the res ipsa rule cannot be invoked because of the duties of deceased and his knowledge of the doubler tank, its attachments and connections, and the risks and dangers inherent in his work.
Respondent was the only witness used on her side of the case. She testified, including the direct and cross examination, that deceased was her husband; that he was an employee of defendant; that he worked in defendant's distilling plant; that on March 4, 1945, when on duty, he was killed by an explosion in the plant; that she had lived near the plant for many years and that there had not theretofore been an explosion in the plant. She also testified that she and the deceased had four children ranging in age from 11 to 18; that deceased was earning about $ 4500.00 per year. There was no evidence on the part of respondent as to what exploded or anything about the equipment in the plant or what the deceased was doing when the explosion occurred. Plaintiff rested her case after testifying as above stated. Defendant thereupon filed motion for a directed verdict, but the motion was overruled. Manifestly plaintiff's evidence was not sufficient to support submission under the res ipsa loquitur rule. Charlton v. Lovelace et al., 351 Mo. 364, 173 S.W.2d 13. We might say, however, that the facts were covered by the opening statements of counsel which statements are in the record, and no doubt the learned trial court, in ruling the motion, took into consideration the statement by counsel for defendant. Defendant did not stand on its motion for a directed verdict at the close of plaintiff's case, but introduced evidence from which the facts pertinent to the explosion and death of deceased were disclosed. At the close of the whole case defendant again filed motion for a directed verdict which was overruled.
Appellant assigns error (1) on overruling its motion for a directed verdict at the close of the case; (2) on the refusal of its instructions 7 and 7(a); and (3) on respondent's instructions 2 and 3.
If there is anything in the evidence introduced by appellant that will aid plaintiff's case she is entitled to it, hence we state the facts as they appear from appellant's evidence. March 4, 1945, and for some time prior thereto, deceased had been superintendent of maintenance and foreman of the maintenance crew at appellant's distilling plant. About 8 p.m. on the date mentioned, while using an acetylene torch, in connection with some work he was doing on the vapor line connected with the doubler tank, the doubler tank exploded and he was killed. The explosion occurred about 8 p.m. on Sunday; the plant had been shut down the night before and the whole of Sunday was used by deceased and his crew to make repairs. Details as to these repairs are not shown, but they included repairs on the rectifying column (the rectifier) and the vapor line; the work required that the plant be shut down and the doubler tank drained and such was done.
The doubler tank was made of 1/4 inch boiler plate steel; was 14 feet in diameter and 12 feet high; was somewhat convex at the top and concave at the bottom; had pipe connections, control valves, etc. to permit the intake and outgo of liquids used in the manufacture of alcohol. There were steam coils in the bottom of the doubler tank and the liquids in the tank were heated by these coils. As the liquids vaporized the vapor passed from the doubler tank through the vapor line and into the rectifier which was 12 or 14 feet west from the doubler tank; was cylindrical in form, 42 inches in diameter and about 30 feet high. The vapor line was made of copper; was 8 inches in diameter and extended from the top of the doubler tank into the bottom of the rectifier. Deceased, at the time of the explosion, was using an acetylene torch on the vapor line; a member of his repair crew had drilled holes in the line; these holes made a small circular figure; the metal in the circle area was bashed out and the torch was being used, after the piece was out, to weld in a thermometer bulb as we understand. The torch had been used for about 10 minutes when the explosion occurred, and the work there was almost completed.
Appellant used as witnesses, Martin Doane, its president; Chester Knight, its assistant superintendent, and Martin L. Moore its then superintendent of maintenance and who succeeded deceased in such position. Doane testified that deceased was maintenance foreman at the time of the explosion; that he (deceased) "had charge of repair and maintenance"; that a crew of men worked under him; that deceased had been working for appellant for about 2 years; but had been maintenance foreman for about 6 months before the explosion; that if the nature of repair work upon equipment would be dangerous because of gases, etc., then the equipment to be repaired was taken out of operation; that it was the duty of the man in charge of the repair work ...
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