Koch Bros. Bag Co. v. Kansas City

• Decision Date: 14 July 1958
• Docket Number: No. 1,No. 46474,46474,1
• Citation: 315 S.W.2d 743
• Parties: KOCH BROS. BAG COMPANY, a Corporation, Respondent, v. KANSAS CITY, Missouri, a Municipal Corporation, Appellant
• Court: Missouri Supreme Court

Page 743

315 S.W.2d 743

KOCH BROS. BAG COMPANY, a Corporation, Respondent, v. KANSAS CITY, Missouri, a Municipal Corporation, Appellant.

No. 46474.

Supreme Court of Missouri, Division No. 1.

July 14, 1958.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 8, 1958.

Benj. M. Powers, City Counselor, John J. Cosgrove, Associate City Counselor, Robert A. Meyers, Asst. City Counselor, Kansas City, for appellant.

Rope, Shanberg & Rope, I. Frank Rope, Arnold N. Shanberg, Herbert M. Rope, Kansas City, for respondent.

HYDE, Presiding Judge.

Action for $8,800 property damage from leakage of water from a city hydrant into plaintiff's basement. The jury found for defendant but the Court sustained plaintiff's motion for new trial on the ground of error in giving Instruction No. 11 at defendant's request. Defendant appealed from the order granting a new trial and contends both that Instruction No. 11 was correct and that plaintiff failed to make a submissible case.

Defendant says no submissible case was made for the reason that there was no evidence of any defect in the hydrant. It says plaintiff proved that on each occasion when it was damaged that the leak was stopped by a man turning off the hydrant, showing specifically that the hydrant had been turned on and not completely shut off but failing to show it was turned on by anyone for whose acts the City would be liable. Defendant says: 'where evidence shows that the occurrence which caused plaintiff damage may have resulted from two or more causes, there must be substantial evidence tending to show that cause for which defendant would be liable was the actual cause before the plaintiff can recover,' citing Waldron v. Skelly Oil Co., 363 Mo. 1146, 257 S.W.2d 615; Grindstaff v. J. Goldberg & Sons Structural Steel Co., 328 Mo. 72, 40 S.W.2d 702; Frazier v. Ford Motor Co., 365 Mo. 62, 276 S.W.2d 95. Plaintiff claims to have made a res ipsa case, relying on Lober v. Kansas City, Mo.Sup., 74 S.W.2d 815, saying it made a prima facie case of general negligence; and plaintiff also says the evidence was sufficient for the jury to find that the hydrant was defective because it was worn out.

It was admitted that the Water Department of the City was operated as a commercial enterprise and also for fire protection and cleaning the streets. Hydrants could be lawfully opened by employees of the Water Department, the Street Cleaning Department or the Fire Department. Sometimes they were opened by trespassers, boys in the summertime or contractors who want a little water, and permits were sometimes issued to take water from hydrants through meters. Hydrants were also opened to bleed lines, to remove discoloration and to reduce pressure. Loyd Riley, plaintiff's foreman, first discovered water running from the basement wall, the City was notified and the water stopped. This was June 23, 1951. The same thing happened on three other occasions (July 15, July 28 and August 21), and, each time, after the City was notified, he saw someone working on the water plug on the southwest corner of Fourth and Delaware adjacent to defendant's building. Mr. Koch, plaintiff's president, said on the occasion of the first leak, he heard a humming sound in the hydrant which stopped when a Water Department employee used a wrench on it but the water continued to flow for some time. On the three later occasions, water again ran into the basement but stopped after Water Department employees turned off the hydrant. Shortly after the last occurrence, the City had some people out who broke up the sidewalk around the hydrant and did some repair work, working on the valve.

The City's evidence was that on June 23 and August 21, two of the days of alleged leaking, and October 4, the hydrant was turned off by Water Department employees, and on April 1, 1952, six months after the last leakage, the hydrant was replaced because it was worn out, as part of the program for replacement of obsolete hydrants. All water plugs are constructed with two three-eighths inch drains in the base of the plug to prevent freezing and damage to the plug in cold weather, and if a hydrant is not turned off completely, water will flow from the water line through the drain. If a hydrant can be turned off in the normal manner by turning the operating nut at the top of the hydrant, nothing is wrong with it. At the time of the occurrences, the streets at Fourth and Delaware were cleaned by street cleaners using two-wheeled carts. They used water hydrants in their work, but no record was kept of which hydrants they turned on. Due to the great flood, which occurred July 13, 1951, damaging the water system, there were no street cleaners in the area on July 15th. Records are kept of when the Water Department employees use any water hydrant. A search was made of these records and did not disclose any use of the hydrant by the Water Department during the...