Hardwick v. Kansas City Gas Co.

• Decision Date: 10 June 1946
• Docket Number: 39490
• Parties: Lee R. Hardwick, Respondent and Cross-Appellant, v. Kansas City Gas Company, a Corporation, Appellant, and Metropolitan Life Insurance Company, a Corporation, Respondent
• Court: Missouri Supreme Court

195 S.W.2d 504

355 Mo. 100

Lee R. Hardwick, Respondent and Cross-Appellant, v. Kansas City Gas Company, a Corporation, Appellant, and Metropolitan Life Insurance Company, a Corporation, Respondent

No. 39490

Supreme Court of Missouri

June 10, 1946

Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.

Affirmed.

Charles M. Miller for appellant Kansas City Gas Company.

(1) Plaintiff's position as submitted by his requested and given Instruction 1, to the jury, was whether natural gas escaped from a break from the gas company's 4 inch main in the street, and caused the explosion, or contributed by combining with gas escaping from the pipes within the building, causing the explosion. Defendant contends there was no evidence sufficient to make a submissible case. The law under the facts and the position of plaintiff, required proof of reasonable certainty. St. Marys Gas Co. v Brodbeck, 114 Ohio St. 423, 151 N.E. 323; Nomath Hotel Co. v. K.C. Gas Co., 204 Mo.App. 214, 223 S.W 975; Fritz v. Railroad, 243 Mo. 62, 148 S.W. 74; Fuch v. St. Louis, 167 Mo. 620, 67 S.W. 610; Fritz v. Mfg. Ry. Co., 124 S.W. 603; Riggs v. St. Ry. Co., 216 Mo. 304, 115 S.W. 969. (2) Plaintiff's evidence contained no direct evidence that gas from a break in the 4 inch main in the street, escaped from a break in the basement, through the retaining wall or elsewhere, and caused or contributed to cause the explosion in the basement. (3) Plaintiff relies upon opinion evidence of experts, which, standing alone, is not sufficient in this case to make a submissible case. Fritz v. Mfg. Ry. Co., 124 S.W.2d 603. (4) The necessary fact to support an inference must be proven and cannot be permitted to rest upon guess work, conjecture or speculation, and the case must fail where the inference is inconsistent with a proven fact, and the factual issues must be established by legitimate proof, which factual inferences must not be inconsistent. Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31; Lappin v. Prebe, 345 Mo. 68, 131 S.W.2d 511. (5) An inference, if permissible, must point to the liability of the defendant, to the exclusion of other causes, and an inference cannot be predicated upon an inference, and such, we urge, applies to an expert witness. Pape v. Aetna Cas. Co., 150 S.W.2d 569. (6) Where a thing may have resulted from one of two causes, for one of which and not the other, the defendant would be liable, plaintiff must show with reasonable certainty that the cause for which the defendant would be liable was the proximate cause of the injury. Warner v. Railroad, 178 Mo. 175, 77 S.W. 67; Hayes v. Kresge Co., 100 S.W.2d 325. (7) Where two inferences are contradictory respecting ultimate facts, such constitutes a failure of proof thereof, as it leaves it in the field of conjecture. Speakman v. Kurn, 115 S.W.2d 185. (8) The testimony of the five experts was incompetent and inadmissible because the witnesses were not qualified, stated conclusions of the witnesses, which were based upon improper and incompetent inferences, predicated upon speculation or conjecture and invaded the province of the jury, decided the ultimate questions for the jury and in some instances, were predicated upon hypothetical questions involving facts not disclosed by the evidence, all of which were harmful to the defendant gas company. The witnesses were permitted to run wild on conclusions. Southern Iron & Equip. Co. v. Smith, 257 Mo. 226, 165 S.W. 804; Kimmie v. Railroad, 334 Mo. 596, 66 S.W.2d 561; Vitale v. Duerbeck, 338 Mo. 556, 92 S.W.2d 691; Miller v. Ins. Co., 61 S.W.2d 205; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31; Lappin v. Prebe, 345 Mo. 68, 131 S.W.2d 511; Pape v. Aetna Cas. Co., 150 S.W.2d 569. (9) The trial court erred in admitting in evidence, over the objection of defendant, gas company, the testimony of A. N. Adams, Jr., on behalf of plaintiff. (10) The trial court erred in not permitting defendant gas company to offer and read in evidence to the jury, certain parts of plaintiff's petition as admissions of plaintiff or declarations, and to argue to the jury therefrom. Farm & Home Sav. Assn. v. Stubbs, 98 S.W.2d 320; Weil v. Posten, 77 Mo. 284; Knoop v. Kelsey, 102 Mo. 291, 14 S.W. 110; Davis v. Bond, 75 Mo.App. 32; Kelly v. Briggs, 290 S.W. 105; State v. Webster Groves, 327 Mo. 594, 37 S.W.2d 905; Bruce v. Sims, 34 Mo. 246; Otrich v. Railroad, 154 Mo.App. 420, 134 S.W. 665. (11) The trial court erred in giving plaintiff's Instruction 1 submitting alleged negligence of the defendant gas company to the jury, for the reason there was no sufficient evidence upon which to prejudicate it. Bauer v. Wood, 236 Mo.App. 266, 154 S.W.2d 356. (12) The trial court erred in refusing defendant's Instruction N, informing the jury they could not base a verdict on speculation or conjecture, and defining the same. The instruction properly declared the law and should have been given. Bauer v. Wood, 236 Mo.App. 266, 154 S.W.2d 356.

William G. Boatright for respondent and cross-appellant Lee R. Hardwick.

(1) Plaintiff made a submissible case. The evidence warranted the conclusion that gas escaping from a break in defendant gas company's main caused or contributed to cause the explosion which killed plaintiff's wife. Stephens v. Kansas City Gas Co., 191 S.W.2d 601. (2) Expert testimony touching the ultimate questions of the nature and cause of the explosion was proper. Stephens v. Kansas City Gas Co., supra. (3) Testimony that the gas company attempted to conceal the facts respecting the bedding and back-filling where its main was found to be broken was competent. Powell v. Union Pac., 255 Mo. 420, 164 S.W. 628; Cooper v. Metropolitan Life Ins. Co., 94 S.W.2d 1070. (4) There was no error in refusing to permit specifications of joint negligence contained in the petition on which the case was being tried to be read to the jury as admissions against interest, plaintiff's position, both on evidence and theory of submission, being consistent with the allegations of his petition. (5) There was no error in refusing the gas company's requested Instruction N because Instruction E given at the request of the gas company covered the same field and because Instruction N was argumentative, a comment on the evidence and was so framed as to mislead the jury as to the right to draw inferences from facts proved. (6) The judgment of this court on the former appeal reversing the judgment appealed from and remanding the cause without qualification or limitation required a new trial as to all parties and issues. The trial court erred, therefore, in refusing to permit plaintiff to submit his case as against Metropolitan Life Insurance Company. A general reversal of a judgment and remanding of a cause opens the same as to all parties and all issues. Needles v. Burk, 98 Mo. 474, 11 S.W. 1008; Wollman v. Loewen, 108 Mo.App. 581, 84 S.W. 166; 3 Am. Jur., sec. 1191; Id., sec. 1240; 5 C.J.S., secs. 1950, 1989; Freeman on Judgments, sec. 1167. (7) This court has repeatedly recognized that there can be but one final judgment in a case which must dispose of all the issues. Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559; Hoelzel v. Chicago, R.I. & P. Ry. Co., 337 Mo. 61, 85 S.W.2d 126; Yerger v. Smith, 338 Mo. 140, 89 S.W.2d 66; Lambert v. Jones, 339 Mo. 677, 98 S.W.2d 752.

Clay C. Rogers and Mosman, Rogers, Bell & Conrad for respondent Metropolitan Life Insurance Company.

(1) The judgment entered on the jury verdict in favor of defendant Metropolitan on June 5, 1942, became final and no appeal having been taken therefrom until March 1, 1945, the right of appeal is lost, and therefore, the appeal should be dismissed. (2) The judgment was final as to defendant. Peoples Bank of Glasgow v. Yager, 329 Mo. 767, 46 S.W.2d 585; Gay v. K.C. Public Serv. Co., 77 S.W.2d 133; Sec. 1237, R.S. 1939; Franciscus v. Bridges, 18 Mo. 208; Costello v. Kansas City, 209 Mo.App. 155, 232 S.W. 165. (3) The right of appeals exists only as provided by statute and compliance with the mandatory statutory procedure is essential. State Bank of Seneca v. Saft, 228 Mo.App. 973, 75 S.W.2d 420. (4) The right of Hardwick to relitigate the case against the Metropolitan has been adjudicated by this court. Hardwick v. Kansas City Gas Co., 180 S.W.2d 670.

Barrett, C. Westhues and Bohling, CC., concurs.

OPINION

BARRETT

The basement of the Grand Avenue Temple Building in Kansas City extends out underneath the Grand Avenue sidewalk. On the 17th day of November, 1939 there was a violent explosion in the basement of the building. Margaret Hardwick, the plaintiff's wife, was standing in front of the building, waiting for him, when the explosion blew up the sidewalk, causing her death. In this the second trial and appeal the husband recovered a judgment of $ 10,000.00 against the appellant Kansas City Gas Company.

The plaintiff claimed that the explosion and his wife's death were due to the concurrent negligence of the gas company and the owner of the building. But upon the first trial the jury found for the defendant Metropolitan Life Insurance Company the owner of the building, and against the defendant Kansas City Gas Company. The plaintiff, Hardwick, did not appeal from the judgment in favor of the owner of the building. The gas company did appeal and the judgment was reversed and remanded because, as against the appellant gas company, the time for taking certain depositions in Texas had been improperly shortened. Hardwick v. Kansas City Gas Company, 352 Mo. 986, 180 S.W.2d 670. Because the mandate and opinion of this court upon that appeal was a general judgment of reversal the plaintiff claimed that a new trial had been granted as to all parties and all issues and that he was entitled to a retrial as to the owner of the building as...