Lober v. Kansas City

• Citation: 100 S.W.2d 267,339 Mo. 1087
• Parties: Robert Lober and Eula Lober, Doing Business as the Capitol Printing Company v. Kansas City, a Municipal Corporation, Appellant
• Decision Date: 14 December 1936
• Court: United States State Supreme Court of Missouri

100 S.W.2d 267

339 Mo. 1087

Robert Lober and Eula Lober, Doing Business as the Capitol Printing Company v. Kansas City, a Municipal Corporation, Appellant

Supreme Court of Missouri

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 non-actionable 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 A. 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 P. 111; Talcott v. New York, 58 A.D. 514, 69 N.Y.S. 360; Silverburg v. New York, 59 Misc. 492, 110 N.Y.S. 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 A. 138; Thompson v. Ry. Co., 58 N.Y. 525; Wilson v. Troy, 135 N.Y. 104; Becker v. Thompson, 76 S.W.2d 357.

OPINION

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 windows of plaintiffs' printing shop, and filled the shop with water, causing the damages sued for.

Plaintiffs' petition proceeds upon the theory of res ipsa loquitur, alleging general negligence against defendant. Defendant's answer is as follows:

"Comes now the defendant Kansas City and denies each and every allegation in plaintiffs' amended petition contained.

"Further answering, defendant states that if water was permitted to flow from the fire hydrant described in plaintiffs' petition that said flow of water was permitted by the employees of the Street Cleaning Department who were then engaged in flushing the streets and sewers; that said acts were done in the exercise of a governmental function and defendant city is not liable for the negligence of any of said employees while so engaged.

"Further answering, defendant states that the fire plug mentioned in plaintiffs' petition was installed and maintained for the sole purpose of fire protection and for flushing streets and sewers in preserving the public health, and the defendant city is not liable for any defect that might have existed in said fire plug."

Defendant's first contention is that its demurrer to the evidence should have been given (1) because the escape of the water was caused by a breaking of the hydrant while being operated by an employee of the street cleaning department for the purpose of flushing the streets and sewers, and the negligence, if any, of said employee in operating said hydrant was committed in the performance of a governmental function for which the defendant is not liable, and (2) that under all the evidence plaintiffs were not entitled to invoke the doctrine of res ipsa loquitur.

This is the second appeal in this case. The same contentions that are now being made were made and decided against appellant on the former appeal. That decision is the law of the case. We recognize the rule that the former decision of a cause may be reconsidered on a subsequent appeal where the facts and circumstances warrant such action. The rule in this regard is well stated by the St. Louis Court of Appeals in an able opinion by Bennick, C., in Reed v. Missouri Mut. Assn., 33 S.W.2d 986, 988, as follows:

"Ordinarily, on a second appeal, where there has been no such amendment of the pleadings as to introduce new issues, and where the evidence has been identical or substantially the same, the decision on the former appeal will be the law of the case upon all points decided therein. [Davidson v. St. Louis-S. F. Ry. Co., 301 Mo. 79, 256 S.W. 169; Coleman v. Northwestern Mutual Life Insurance Co. (Mo.), 233 S.W. 187; Smiley v. Kinney (Mo.), 262 S.W. 349; Bradley v. Becker (Mo.), 11 S.W.2d 8; Wair v. American Car & Foundry Co. (Mo. App.), 300 S.W. 1048; T. J. Moss Tie Co. v. Stamp (Mo. App.), 25 S.W.2d 138.]

"This general rule is subject to the limitation, however, that the former decision may be reconsidered under exceptional circumstances, as where the opinion was out of harmony with other decisions; where incorrect principles of law were inadvertently declared; where mistake of fact was made; or where injustice to the rights of the parties would be done by an adherence to the first opinion. [Murphy v. Barron, 286 Mo. 390, 228 S.W. 492; Mangold v. Bacon, 237 Mo. 496, 141 S.W. 650; Davidson v. St. Louis-S. F. Ry. Co., supra; Seibert v. Harden, 319 Mo. 1105, 8 S.W.2d 905; Hogan v. Kansas City Public Service Co. (Mo.), 19 S.W.2d 707, 65 A. L. R. 129; Wair v. American Car & Foundry Co., supra.]"

The pleadings and evidence in the instant case are substantially the same as those on the former appeal. A comparison of the record and briefs on the former appeal with those on the present appeal shows that no new issue is presented for decision. In this situation the decision on the former appeal is the law of the case. That decision is reported in 74 S.W.2d 815. We refer the reader to what is there said in...