Long v. Spanish Lake Service, Inc.
| Decision Date | 15 January 1974 |
| Docket Number | No. 34604,34604 |
| Citation | 507 S.W.2d 935 |
| Parties | Claude B. LONG and Kathryn Long, his wife, Respondents, v. SPANISH LAKE SERVICE, INC., Appellant. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Klutho & Cody, St. Louis, for respondents.
Robertson, Ely & Wieland, St. Louis, for appellant.
The key issue here is whether plaintiffs made a submissible res ipsa loquitur case.
Plaintiffs sued defendant for household damages caused by an overflow from defendant's sewer line. Plaintiffs got an $1,800 verdict and judgment and defendant appeals. Defendant seeks to escape liability on the ground plaintiffs had not paid the required charge to connect with defendant's sewer. Plaintiffs' case was not for a breach of contractual duty but for negligence. Defendant's no-contract defense is refuted by May v. Chicago, B & Q R Co., 284 Mo. 508, 225 S.W. 660(11) (Mo.banc 1920): 'Everybody, regardless of any contract he may be under to render a particular service, has the duty imposed on him by law to be ordinarily careful, the circumstances considered, not to hurt other persons; and is responsible to any one who is harmed by a breach of that duty.' We move to the negligence issue.
Plaintiffs pleaded and submitted that defendant owned and operated a sewer main connected with the lateral sewer line on plaintiffs' lot--which defendant admitted--and that defendant's negligence, not specified, caused sewage to back up and overflow into plaintiffs' home, to their damage.
Plaintiffs' evidence was that they returned home to find garbage, fecal matter and debris had overflowed into their house and out into their yard after a neighbor had seen the overflow and opened an outside door. Interior damage was extensive. Plaintiffs introduced defendant's answers to interrogatories showing defendant's nearby manhole, 42 inches in diameter and 18 feet deep, had been cleaned a few days before the overflow but that defendant had no records showing when and had no written guide lines regarding inspection of its sewer lines. That was all of plaintiffs' evidence.
In determining the submissibility of plaintiffs' case they are entitled not only to their own evidence but also to defendant's evidence that helps plaintiffs' case. Defendant's evidence was that its employees had inspected the manhole four days before the overflow and found it clear; that immediately after the overflow they removed from the manhole an 18-inch metal grate, some wire, rocks and bricks--none of which was part of the sewer system. We need not decide whether this evidence did or did not show defendant was negligent since plaintiffs do not rely upon it and contend simply that under the theory of res ipsa loquitur the fact of overflow is sufficient to warrant a finding defendant was negligent. We do note that defendant's evidence of the debris being at the bottom of the manhole does warrant an inference that the stoppage originated in defendant's sewer main rather than in plaintiffs' lateral sewer line.
The landmark case of McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557(1) (1932), declares the essential elements of a res ipsa submission: 'In general and on principle the doctrine res ipsa loquitur does not apply except when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence.' Here we are concerned with the control element and the probability element. Our res ipsa doctrine had its origin in English law. A lucid rationale of the theory is found in Scott v. The London & St. K. Docks Co., 3 Hurls. & C. 596, 601 (1865): 'But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.'
We first look to the element of defendant's control of the sewer main. Plaintiffs rely on Zurich Insurance Co. v. Missouri Edison Co., 384 S.W.2d 623 (Mo.1964), and Adam Hat Stores, Inc. v. Kansas City, 316 S.W.2d 594 (Mo.banc 1964). Both cases are distinguishable. In Zurich plaintiff's damage arose from an explosion resulting from a break in defendant's gas...
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...Willis v. Terminal R.R. Assoc., 421 S.W.2d 220 (Mo.1967); Walsh v. Phillips, 399 S.W.2d 123 (Mo.1966); Long v. Spanish Lake Service, Inc., 507 S.W.2d 935 (Mo.App.1974). if one of the above elements is not present, then the case is not properly one for application of the res ipsa loquitur do......
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...case is not required to exclude every other reasonable theory of nonliability on the part of a defendant." Long v. Spanish Lake Service, Inc., 507 S.W.2d 935, 938(8) (Mo.App.1974), cited by Barker, is in error in quoting the Charlton case statement in view of the pronouncements, supra, of t......
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