McCardle v. George B. Peck Dry Goods Company

• Court: Missouri Supreme Court
• Writing for the Court: ROY, C.
• Citation: McCardle v. George B. Peck Dry Goods Company, 195 S.W. 1034, 271 Mo. 111 (Mo. 1917)
• Decision Date: 29 May 1917
• Parties: HENRIETTA E. McCARDLE, Appellant, v. GEORGE B. PECK DRY GOODS COMPANY

195 S.W. 1034

271 Mo. 111

HENRIETTA E. McCARDLE, Appellant, v. GEORGE B. PECK DRY GOODS COMPANY

Supreme Court of Missouri, Second Division

May 29, 1917

Appeal from Jackson Circuit Court. -- Hon. William O. Thomas, Judge.

Reversed and remanded.

Charles M. Howell and Joseph S. Brooks for appellant.

(1) Defendant in operating the elevator was a common carrier. Cooper v. Realty Co., 224 Mo. 709; Orcutt v Century Bldg. Co., 214 Mo. 35; Lee v. Knapp, 155 Mo. 610; Lincoln R. E. & B. Co. v. Becker, 174 Mo. 246. And instruction number 1 given for defendant was erroneous. (2) Defendant as a common carrier was required to exercise the highest practicable degree of care, caution and diligence which prudent persons would exercise under like circumstances, and instructions numbered 1 and 7 given for defendants were erroneous, in that they required of defendant a lesser degree of care. Stauffer v. Met. St. Ry Co., 243 Mo. 305-17; Price v. Met. St. Ry. Co., 220 Mo. 435; Briscoe v. Met. St. Ry. Co., 222 Mo 104. (3) This is a res ipsa loquitur case. Its nature relieved plaintiff of the necessity of pleading or proving what caused the elevator to drop. The burden was on defendant to explain why it fell. An instruction which put on plaintiff the burden of proving the cause of the elevator's falling, or which told the jury there was no evidence of negligence in reference to machinery or elevator, invaded the province of the jury, took from the jury an issue made by the character of the case, and destroyed the res ipsa loquitur character of the case given plaintiff by the law, put on her the burden of showing negligence, and denied to her the right to have that issue passed upon by jury. And instruction number 2 given for defendant was error. Agnew v. Railroad, 178 Mo.App. 119; Hurck v. Railroad, 252 Mo. 39-51; Brown v. Railroad, 256 Mo. 522; Maier v. Railroad, 176 Mo.App. 29; Pattison v. Railroad, 178 Mo.App. 250-263. (4) If physical injury be sustained, recovery can be had for effects of mental shock, fright, scare and terror, and instruction number 8, given for defendant, was erroneous under the evidence. McCardle v. Peck D. G. Co., 191 Mo.App. 263; Shellabarger v. Morris, 115 Mo. 566; Dye v. Railroad, 135 Mo.App. 255; Lowe v. Railroad, 145 Mo.App. 248; Heiberger v. M. & K. Tel. Co., 133 Mo.App. 452. (5) If impact, contact, battery or force from without be applied to the person, recovery can be had for results of mental shock, fright, terror or scare, with or without physical injury, and instructions 5, 8 and 9 given for defendant were erroneous: Herke v. Railroad, 141 Mo.App. 613; Heiberger v. M. & K. Tel. Co., 133 Mo.App. 451; McCardle v. Peck D. G. Co., 191 Mo.App. 263; Shellabarger v. Morris, 115 Mo.App. 566; Hayter v. Railroad, 93 Tex. 239; Railroad v. Roller, 100 F. 738; Stewart v. Railroad, 112 La. 765; Hack v. Dady, 142 A.D. 510, 127 N.Y.S. 122; Jones v. Railroad, 48 N.Y.S. 914; Pankopf v. Hinkley, 141 Wis. 146; Railroad v. Murdock, 116 S.W. 139; Buchanan v. Railroad, 52 N. J. L. 264; Bain v. Kentucky T. & T. Co., 161 Ky. 44; Railroad v. Owen, 156 Ky. 827; Steverman v. Railroad, 205 Mass. 508; Homans v. Railroad, 180 Mass. 456; Megathlin v. Elev. Ry., 220 Mass. 538; Bell v. Railroad, 217 Mass. 408; McCarthy v. Elev. Ry., 223 Mass. 568; Driscoll v. Gaffey, 207 Mass. 102; Conley v. United Drug Co., 218 Mass, 238; Traction Co. v. Lambertson, 36 A. 100; Shay v. Railroad, 66 N. J. L. 334; Kennell v. Gershonovitz, 84 N. J. L. 577; Porter v. Railroad, 73 N. J. L. 405; Folk v. Railroad, 99 S.C. 284; Cohn v. Realty Co., 148 N.Y.S. 39; Samarra v. Railroad, 238 Pa. St. 469; O'Meara v. Russell, 90 Wash. 557; Purcell v. Railroad, 48 Minn. 134. (6) It is not necessary that the physical injury be indicated upon the surface of the body by a bruise or otherwise. Such injury is none the less a physical injury from the fact that it is wholly internal, or that it cannot be designated except by a post-mortem examination, and instructions 5, 8 and 9 given for defendant were erroneous. Shellabarger v. Morris, 115 Mo.App. 566; Dye v. Railroad, 135 Mo.App. 255; Homans v. Railroad, 180 Mass. 456; Steverman v. Railroad, 205 Mass. 508; Cameron v. Tel. & Tel. Co., 182 Mass. 310; Driscoll v. Gaffey, 207 Mass. 102; Bain v. Ky. T. & T. Co., 161 Ky. 44. (7) Where physical injury results from fright, scare, or mental shock caused by the wrongful act or omission of another, the injured party is entitled to recover damages, provided the wrongful act or omission is the proximate cause of the injury, and instruction numbered 8, given for defendant, was erroneous as tested by the evidence in the case. Hayter v. R. R., 93 Tex. 239; Bell v. Railway, 26 C. L. 428; Purcell v. St. Ry. Co., 48 Minn. 135; O'Meara v. Russell, 90 Wash. 557; Sedgwick on Damages, 640. (8) It is immaterial whether the results of fright, scare and mental shock accompany the accident or flow from it, or whether nervous shock came through battery or along with it, and instructions 5, 8 and 9, given for defendant, were erroneous. Heiberger v. Telephone Co., 133 Mo.App. 452; Hack v. Dady, 142. App.Div. N.Y. 510, 127 N.Y.S. 122; Steverman v. Railroad, 205 Mass. 508; Homas v. Railroad, 180 Mass. 456; Samarra v. Railroad, 238 Pa. St. 469; O'Meara v. Russell, 156 P. 550.

McCune, Caldwell & Downing and Harold M. Noble for respondent.

(1) Plaintiff cannot adopt one theory of duty required of defendant, and then complain if the defendant adopts the same theory. Where the plaintiff, out of a superabundance of caution, elects to hold the defendant for want of ordinary care only, instead of the highest practicable degree of care, she cannot then complain if the defendant adopts a theory requiring at least as great a degree of care, but not, possibly, amounting to the highest practicable degree of care. Schofield v. Land Co., 187 S.W. 61; Stevens v. Crane, 116 Mo. 408; Phelps v. Salisbury, 161 Mo. 1; Honea v. Railroad, 245 Mo. 621; Allen v. Forschler, 189 S.W. 636; Horgan v. Brady, 155 Mo. 659. (2) Instruction number 7 is a correct statement of the law, as the defendant is not liable if the jury finds that there is no negligence on its part, and that the injury was occasioned by unavoidable accident, or by some cause which human precaution and foresight could not have averted. Clark v. Railroad, 127 Mo. 197; Briscoe v. Railroad, 222 Mo. 104; Zeis v. Brewing Assn., 205 Mo. 638; United States v. Railway, 189 F. 471; Steamship Co. v. Steamship Co., 24 How. 307. (3) Under the res ipsa loquitur doctrine, the sole inference or presumption is that there was some negligence at the very time of the alleged accident, and that alone. Accordingly, the court committed no error in instructing the jury that there was no evidence that this elevator, constructed twenty-three years before, and shown to have been changed a number of times since then, was defectively or improperly constructed, as this clearly refers to the initial construction. Moorhead v. Railroad, 17 Ohio 340; In re Howett, 10 Pa. 379; Fugate v. Miller, 109 Mo. 281. (4) The plaintiff cannot recover for any fright, terror, alarm, anxiety or distress of mind caused by or resulting from the descent of defendant's elevator if these were unaccompanied by some physical injury, nor for physical injuries that may be caused solely by such mental disturbance. Further, the burden is upon the plaintiff to show that she received a physical injury of some kind at the time of the alleged accident. Accordingly, defendant's instructions 5, 8 and 9 were correct and proper. Crutcher v. Railroad, 132 Mo.App. 311; Smith v. Pullman Co., 138 Mo.App. 245; Trigg v. Railway, 74 Mo. 147; Dalzell v. Hotel Co., 191 Mo.App. 379; Stout v. Kansas City Terminal, 172 Mo.App. 113; Connell v. Tel. Co., 116 Mo. 34; Railway Commrs. v. Coultas, 13 App. Cas. 222; Spade v. Railroad, 168 Mass. 285; Traction Co. v. Bain, 161 Ky. 44; Haile v. Railway, 60 F. 557; Railway v. Liebig, 79 Ill.App. 567; Railway v. Ray, 167 Ind. 236; Mahoney v. Dankwart, 108 Iowa 321; Morris v. Railroad, 228 Pa. 198; Miller v. Railroad, 78 Ohio St. 309; Mitchell v. Railway Co., 151 N.Y. 101, 34 L. R. A. 781; Tiller v. Railway, 189 F. 994; Kyle v. Railroad, 182 F. 613; Railway v. Bragg, 69 Ark. 402; Braun v. Craven, 175 Ill. 401, 42 L. R. A. 199; Wyman v. Leavitt, 71 Me. 227; Nelson v. Crawford, 122 Mich. 466; Ward v. Railroad, 64 N. J. L. 383; Johnson v. Wells Fargo Co., 6 Nev. 224; Chuttick v. Transit Co., 224 Pa. 13; Norris v. Railway, 84 S.C. 15; Railway v. Trott, 86 Tex. 412.

ROY, C. White, C., concurs. Faris, J., concurs; Williams and Walker, JJ., concur in paragraphs 1, 2, 4 and result.

OPINION

ROY, C.

Plaintiff sued for $ 20,000 as damages for alleged personal injuries caused by the fall of a passenger elevator in defendant's department store in Kansas City in which the plaintiff was at the time a passenger. There was a verdict and judgment for the defendant, and the plaintiff has appealed.

A previous suit by the plaintiff's husband against the same defendant for damages for loss of services of the wife by reason of said alleged injuries is reported in 191 Mo.App. 263.

It is sufficient for the purposes of this case to say that the evidence tends to show that on December 26, 1911, said elevator, filled with passengers, including the plaintiff, on its way from the second to the first floor, could not be stopped, for some unknown reason, at the first floor, but passed on down to the bottom of the shaft in the basement striking the bottom with a thud; that one or more of the passengers screamed; that no note was then taken of any physical injury to any of them; that plaintiff left the building without complaining of any physical injury, and that evening called up Mr. Conkey, defendant's superintendent, and said to him: "I don't know...