Hickman v. St. Louis Dairy Co.

• Decision Date: 04 February 1936
• Citation: 90 S.W.2d 177,232 Mo.App. 117
• Parties: GUTHRIE JEWELL HICKMAN, A MINOR, BY IRENE HICKMAN, HIS NEXT FRIEND, RESPONDENT, v. ST. LOUIS DAIRY COMPANY, A CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

90 S.W.2d 177

232 Mo.App. 117

GUTHRIE JEWELL HICKMAN, A MINOR, BY IRENE HICKMAN, HIS NEXT FRIEND, RESPONDENT, v. ST. LOUIS DAIRY COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, St. Louis

February 4, 1936

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

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Oakley & Frank and R. J. Lee for appellant.

(1) There must be some direct evidence or evidence raising reasonable inference that defendant was guilty of the specific acts of negligence alleged. Halt v. Cleveland C. C. & St. L. Ry. Co., 279 S.W. 148; State ex rel v. Trimble, 12 S.W.2d 727, l. c. 732; Kapros v Pierce Oil Corporation, 25 S.W. 777; Papamichael v. Wells, 33 S.W.2d 1058; Yarnell v. Missouri Utilities Co., 23 S.W.2d 229; Kuhlman v. Water, Light & Transit Co. (Mo.), 271 S.W. 788; Orcutt v. Century Building Co., 201 Mo. 424; Porter v. Railway, Light, Heat & Power Co., 311 Mo. 36; Harvester Co. v. F. Reserve Bank of K. C., 226 Mo.App. 916, l. c. 929. (2) Instructions should not be broader than the pleadings and the evidence. State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Krelitz v. Calcaterra, 33 S.W.2d 909; Bird v. San Francisco Ry. Co., 78 S.W.2d 389; Lakin v. Chicago, R. I. & P. Ry. Co., 78 S.W.2d 481; Begonia v. St. Louis, etc., R. Co., 224 Mo. 564, 589, 123 S.W. 807; Kuhlman v. Water, Light & Transit Co., 271 S.W. 788; Allison v. Dittbrenner, 50 S.W.2d 199; Muser v. Kansas City, 249 S.W. 681; Silliman v. Munger Laundry Company (Mo.), 44 S.W.2d 159.

Fred Berthold and Emery W. Chase for respondent.

(1) It is the jury's province to believe or disbelieve evidence. Rockenstein v. Rogers (Mo.), 31 S.W.2d 792, l. c. 798; Anderson v. Davis, 314 Mo. 515-556, 284 S.W. 439; Gould v. R. R., 315 Mo. 713, 723, 290 S.W. 135. (2) Trial--Evidence--The jury passed upon the evidence. In determining, on appeal, the sufficiency of proof to sustain a verdict for plaintiff, evidence in favor of defendant need not be considered, unless it aids plaintiff's case, is a well-established rule in appellate practice. Dell v. J. A. Schaefer Const. Co. (Mo.), 29 S.W.2d, l. c. 79; Hires v. St. Louis San Francisco R. Co., 137 S.W. 60; Koch v. Sanford Loan & Realty Co., 286 S.W., l. c. 733; Markle v. Langner, 46 Mo. 393; Long v. Eaton, 49 Mo. 115; Langdon v. Green, 49 Mo. 363; Beck v. Pollard, 55 Mo. 26; Douglas v. Orr, 58 Mo. 573; J. B. Colt & Co. v. Young, 294 S.W. 451; Stewart v. Am. Ry. Co., 18 S.W.2d 521; Bode v. Wells, 15 S.W.2d 335. (3) Where no objection is made to the introduction of evidence, the petition will be considered as amended to conform to the evidence. Dement v. McNail, 4 S.W.2d, l. c. 832; Whitehead v. Koberman, 299 S.W. 121; Treece v. Wade, 283 S.W. 714; Ehrlich v. Mittelberg, 299 Mo. 284, 252 S.W. 671; State ex inf. v. Gromer (Mo.), 252 S.W. 705, l. c. 707. (4) Finding of jury. Finding for plaintiff by the jury, instructed to find for defendant by instructions 3 and 5, if "defendant was not careless or negligent," eliminated such issue from consideration on appeal. Foster v. Kansas City C. C. & St. J. Ry. C. (Mo.), 26 S.W.2d 770. (5) Instruction No. 4 told the jury, "Before you can find for plaintiff, you must first find that defendant negligently sold and delivered to plaintiff the identical milk in question and that said milk contained glass when it left the possession of defendant and was delivered to plaintiff." Such issue is eliminated from consideration on appeal. Foster v. Kansas City C. C. & St. J. Ry. Co. (Mo.), 26 S.W.2d 770. (6) There was not a scintilla of evidence that plaintiff's injuries were the result of carelessness and negligence on the part of other persons after defendant delivered the milk to plaintiff, and the giving of instruction No. 6 at defendant's request justified the court in the giving of instruction No. 2 of which the appellant now complains. Concurrent negligence gives cause of action against each participant and judgment may be obtained against any or all, but there can be but one satisfaction. Hohimer v. City Light & Traction Co., 262 S.W. 403; Williams v. St. L. P. S. Co. (Mo.), 73 S.W.2d, l. c. 202, and cases cited; Kidd v. Chicago R. I. & P. R. Co. (Mo.), 274 S.W., l. c. 1086, 1087; Meyers v. Kennedy (Mo.), 267 S.W. 811; State ex rel. v. Cox et al. Judges (Mo.), 274 S.W., l. c. 376; Armis v. Standard Oil Co. (Mo.), 233 S.W. 195; Meadows v. Wabash Ry. Co., 273 S.W. 130; Banker v. Wells, 274 S.W., l. c. 940, and cases cited; Alewel v. E. St. L. & Sub. R. Co. (Mo. App.), 26 S.W.2d 869; Cox v. Dean, 4 S.W.2d 835; Highfill v. Wells (Mo.), 16 S.W.2d 100; Phillips v. Yellow Cab Co., 36 S.W.2d 419. (7) Instruction No. 2 is an approved instruction. Banker v. Wells (Mo. App.), 274 S.W., l. c. 940. (8) When defendant asked for instruction on same theory of plaintiff's instruction, he is estopped on appeal from asserting that that issue was not in the case. Bruns v. United Rys., 251 S.W. 760; Torrance v. Pryor, 210 S.W. 430, l. c. 432; Crum v. Crum (Mo.), 231 Mo. 626, l. c. 639, 132 S.W. 1070; Varley v. Columbia Taxicab Co. (Mo.), 240 S.W. 221. (9) Matters not presented under head "Points and Authorities" are waived and abandoned. Burch v. Cleveland, C. C. & St. L. Ry. Co. (Mo.), 40 S.W.2d 688, 693; Wertz v. Chgo. B. & Q. R. Co., 40 S.W.2d 515, l. c. 519; Denkman v. Prudential Fixture Co. (Mo.), 289 S.W. 591; Moffett Bros. & Andrews Comm-Co. v. Kent (Mo.), 5 S.W.2d 395.

BECKER, J. Hostetter, P. J., and McCullen, J., concur.

OPINION

BECKER, J.

--This is an action for damages brought by plaintiff through his next friend, against the defendant for injuries alleged to have been sustained on June 2, 1931, when plaintiff was nine months of age, as the direct result of drinking some of the contents of a bottle of milk sold by defendant to plaintiff's mother, which milk contained ground and broken glass.

The case was tried to a jury which returned a verdict in favor of plaintiff and against the defendant in the sum of $ 1500. From the resulting judgment defendant appeals.

Plaintiff's petition sets up two assignments of negligence: First, that defendant, its agents and servants, sold milk filled with ground and broken glass to the plaintiff, for consumption, when they knew or by the exercise of ordinary care could have known that plaintiff would drink said milk and would become violently sick and injured; second, that an inspection on the part of defendant, its agents or servants, would have disclosed broken and ground glass in said milk in time, by the exercise of ordinary care, to have removed the same, and the defendant could thereby have avoided injuring plaintiff, but carelessly and negligently failed to do so, and plaintiff sustained serious and violent injury and sickness.

The defendant's answer was a general denial.

Defendant's first assignment of error is in effect that plaintiff failed to make out a case for the jury, and that the trial court therefore erred in overruling its demurrer offered at the close of plaintiff's case. The point is without merit.

In determining the question as to whether or not plaintiff made out a case for the jury we are mindful that on demurrer plaintiff's evidence, whether contradicted or not, must be regarded as true, so long as it is not impossible as opposed to the physics of the case or entirely beyond reason, and that defendant's evidence must be taken as false where it is contradicted by that of plaintiff. Furthermore, plaintiff is entitled to the benefit of every reasonable inference favorable to his case, which the evidence tends to support. [Grubb v. Curry (Mo. App.), 72 S.W.2d 863; Marshak v. Grocery Co. (Mo. App.), 83 S.W.2d 185, l. c. 190; Freeman v. Term. R. R. Co. (Mo. App.), 78 S.W.2d 559; Mick v. Thompson Co. (Mo. App.), 77 S.W.2d 470, l. c. 474; Howard v. Sacks (Mo. App.), 76 S.W.2d 460, l. c. 463; Steger v. Meehan (Mo.), 63 S.W.2d 109, l. c. 110.]

So too, it must be remembered that a jury may believe all of the testimony of any witness or may reject the whole of it as untrue, or it may accept part of a witness' testimony and reject as untrue the remainder thereof, as the jury find the same to be true or false when viewed and considered in relation to the other testimony and the facts and circumstances in the case. [Rockenstein v. Rogers (Mo.), 31 S.W.2d 792, l. c. 798; Anderson v. Davis, 314 Mo. 515, 284 S.W. 439; Gould v. Ry. Co., 315 Mo. 713, l. c. 723, 290 S.W. 135.]

Viewed in light of the rule above stated there is testimony in the record which if believed tends to prove that plaintiff's mother was a regular customer of the defendant, and on the day in question, and for some time prior thereto, had been purchasing a quart and a pint of milk each day. This milk was delivered by defendant's driver in the morning between the hours of six and six-thirty; that it was customary for the driver in making his delivery of the milk, to set the bottles on the top step of the stairs leading to the door of the plaintiff's home; that the driver, in carrying the bottles of milk from his wagon to the doorstep would place the bottles in a specially designed wire basket, the basket being made in a manner intended to avoid the bottles striking together; that on June 2, 1931, defendant's driver placed a quart and a pint bottle of milk on the top step of plaintiff's home at the usual time; that plaintiff's father, a short time thereafter, took the milk from the door step, walked through the four rooms of the home, and placed the bottles of milk in the refrigerator; that some time after eight o'clock that morning plaintiff's mother went to the refrigerator and took out the pint bottle of milk, took it to the kitchen sink, examined the top of the bottle, then placed it beneath the faucet...