Lober v. Kansas City, No. 34710.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtFrank
Citation100 S.W.2d 267
PartiesROBERT LOBER and EULA LOBER, Doing Business as THE CAPITOL PRINTING COMPANY v. KANSAS CITY, a Municipal Corporation, Appellant.
Decision Date14 December 1936
Docket NumberNo. 34710.
100 S.W.2d 267
ROBERT LOBER and EULA LOBER, Doing Business as THE CAPITOL PRINTING COMPANY
v.
KANSAS CITY, a Municipal Corporation, Appellant.
No. 34710.
Supreme Court of Missouri.
Division One, December 14, 1936.

Appeal from Jackson Circuit Court.Hon. Brown Harris, Judge.

AFFIRMED (upon condition).

George Kingsley, James M. Larkin and John J. Cosgrove for appellant.

(1) Under all the evidence plaintiffs were not entitled to invoke the doctrine of res ipsa loquitur. (a) If water flowing from a fire hydrant under the circumstances narrated in the evidence was presumptive of negligence, it was presumptive, at best, of only nonactionable negligence. (b) Where a fire hydrant is maintained primarily for the extinguishing of fires and cleaning of streets and water flows therefrom either in large or small quantities, if a presumption of negligence arises from such flow, then such presumption is only of nonactionable negligence even though it does not appear that the hydrant at the particular time of the flow was being used either for the extinguishing of fires or the cleaning of streets. Kapros v. Pierce Oil Corp., 324 Mo. 992; State v. Cox, 298 Mo. 427; Russel v. Ry. Co., 245 S.W. 590; Fuchs v. St. Louis, 167 Mo. 620; Grindstaff v. Goldberg, 40 S.W. (2d) 702; Jenny v. Brooklyn, 24 N.E. 274; Allied Realty Co. v. Philadelphia, 95 Pa. Super. Ct. 69; Goldman v. Boston, 174 N.W. 686; Miller v. City, 77 N.W. 788; Pointer v. Ry. Co., 269 Mo. 119; Judson v. Winsted, 80 Conn. 384, 68 Atl. 999; 45 C.J., p. 1207, sec. 775. (2) The court erred in giving plaintiffs' Instruction 3. Interest is not recoverable in actions founded in tort for unliquidated damages before judgment. Atkinson v. Railroad Co., 73 Mo. 367; Meyer v. Railroad Co., 64 Mo. 542; DeSteiger v. Railroad Co., 73 Mo. 33; Slack v. Railroad Co., 187 S.W. 275; Oliver v. Railroad Co., 190 S.W. 361; Jordan v. Railroad Co., 206 Mo. App. 56; Hartford Ins. Co. v. Payne, 243 S.W. 357; Jackels v. K.C. Ry. Co., 231 S.W. 1023.

C.W. Prince, James N. Beery, Hume & Raymond and Franklin E. Reagan for respondents.

(1) The court properly overruled defendants' requested Instruction B in the nature of a demurrer to the evidence. The evidence clearly makes a case for the jury under the doctrine of res ipsa loquitur. Lober v. Kansas City, 74 S.W. (2d) 818; Vitucci Importing Co. v. Seattle, 72 Wash. 192, 130 Pac. 111; Talcott v. New York, 58 App. Div. 514, 69 N.Y. Supp. 360; Silverburg v. New York, 59 Misc. Rep. 492, 110 N.Y. Supp. 993; 45 C.J., sec. 771, note 22, p. 1203; Behle v. Shell Pipe Line Corp., 17 S.W. (2d) 658; McCloskey v. Toplar, 46 S.W. (2d) 559. (a) The former decision in this case this court declared that the issue of whether the hydrant was broken in the process of discharging a governmental function was for the jury. Plaintiff's evidence at this trial shows the hydrant burst forth when nobody was near, thereby strengthening respondents' side of this jury issue. Lober v. Kansas City, 74 S.W. (2d) 823. (b) Under all the evidence plaintiffs were entitled to invoke the doctrine of res ipsa loquitur. Lober v. Kansas City, 74 S.W. (2d) 818. (2) This action is to recover damages for the fixtures and equipment of respondents' printing shop. These fixtures and this equipment have a market value or definite money value and interest on such value was properly allowed. Gilwee v. Pabst Brewing Co., 193 S.W. 887; 17 C.J., p. 727, sec. 68; 1 Sutherland on Damages, p. 1140, sec. 355; 17 C.J., pp. 820, 824, secs. 144, 146; Talbert v. Ry. Co., 15 S.W. (2d) 766; Frazier v. Bigelow Carpet Co., 141 Mass. 126, 4 N.E. 621; Lincoln v. Claflin, 74 U.S. 139, 19 L. Ed. 109; Bernhard v. Ins. Co., 79 Conn. 388, 65 Atl. 138; Thompson v. Ry. Co., 58 N.Y. 525; Wilson v. Troy, 135 N.Y. 104; Becker v. Thompson, 76 S.W. (2d) 357.

FRANK, J.


Action to recover damages to a printing plant, stock and equipment. Plaintiffs recovered judgment for $8000 and defendant appealed.

The printing plant was located in the basement of a building at 811 Delaware Street in Kansas City. The floor of the room occupied by the printing plant was four or five feet below the sidewalk. Immediately across the street from this building there was a water hydrant or fire plug located in the sidewalk. This water hydrant or fire plug was a part of the waterworks system owned and operated by defendant city. A large stream of water suddenly and with great force escaped from this hydrant or fire plug, shot across the street, broke the...

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7 practice notes
  • Protection Mut. Ins. Co. v. Kansas City, No. KCD
    • United States
    • Missouri Court of Appeals
    • May 2, 1977
    ...to the defendant by reason of the injury. Gerst v. City of St. Louis, 185 Mo. 191, 84 S.W. 34 (1904); Lober v. Kansas City, 339 Mo. 1087, 100 S.W.2d 267 Recovery under the Missouri Mob Violence Act is sui generis. That right was created by statute, and whether interest should be included as......
  • Vogel v. A.G. Edwards & Sons, Inc., No. 57461
    • United States
    • Court of Appeal of Missouri (US)
    • December 31, 1990
    ...damages were unliquidated. We disagree. As a general rule, prejudgment interest is not recoverable on a tort claim. Lober v. Kansas City, 100 S.W.2d 267, 268 (Mo.1936). But, like all general rules in law, this rule has exceptions. Where the defendant's tortious conduct confers a benefit upo......
  • Myers v. City of Palmyra, No. 48694
    • United States
    • United States State Supreme Court of Missouri
    • March 12, 1962
    ...Defendant cites and relies on Hayes v. Kansas City, 362 Mo. 368, 241 S.W.2d 888, and Lober v. Kansas City, 339 Mo. 1087, 74 S.W.2d 815, 100 S.W.2d 267, which hold that the cleaning of streets by a municipality is a governmental function to which the doctrine of immunity applies. It then arg......
  • C & H SUGAR CO. v. Kansas City Term. Warehouse Co., No. 81-0571-CV-W-9.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • January 11, 1985
    ...Inc., 450 S.W.2d 217, 220 (Mo.App.1970). Prejudgment interest is not recoverable on tort actions. Lober v. Kansas City, 339 Mo. 1087, 100 S.W.2d 267, 268 (1936). Therefore, no prejudgment interest may be awarded on the negligence and fraud This Court has the authority to award prejudgment i......
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5 cases
  • Vogel v. A.G. Edwards & Sons, Inc., No. 57461
    • United States
    • Court of Appeal of Missouri (US)
    • December 31, 1990
    ...damages were unliquidated. We disagree. As a general rule, prejudgment interest is not recoverable on a tort claim. Lober v. Kansas City, 100 S.W.2d 267, 268 (Mo.1936). But, like all general rules in law, this rule has exceptions. Where the defendant's tortious conduct confers a benefit upo......
  • Myers v. City of Palmyra, No. 48694
    • United States
    • United States State Supreme Court of Missouri
    • March 12, 1962
    ...Defendant cites and relies on Hayes v. Kansas City, 362 Mo. 368, 241 S.W.2d 888, and Lober v. Kansas City, 339 Mo. 1087, 74 S.W.2d 815, 100 S.W.2d 267, which hold that the cleaning of streets by a municipality is a governmental function to which the doctrine of immunity applies. It then arg......
  • National Cash Register Co. v. Kay, No. 24829.
    • United States
    • Court of Appeal of Missouri (US)
    • September 9, 1938
    ...313 Mo. 552, 281 S.W. 744; Davidson v. St. Louis-San Francisco Ry. Co., 301 Mo. 79, 256 S.W. 169; Lober v. Kansas City, 339 Mo. 1087, 100 S.W.2d 267; Kinsley Bank v. Woods, Mo.App., 78 S.W.2d 148; Crossno v. Terminal Railroad Ass'n, 333 Mo. 733, 62 S.W.2d 1092; Denny v. Guyton, 331 Mo. 1115......
  • State v. Arenz, No. 34819.
    • United States
    • United States State Supreme Court of Missouri
    • December 23, 1936
    ...court should have given Instruction No. 6, requested by him. The matters set out in this instruction were fully covered by Instruction 100 S.W.2d 267 No. 2, given on behalf of the State. Therefore, there was no error in refusing to give Instruction No. Finding no error in the record the jud......
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