Morris v. E. I. Du Pont De Nemours & Co.

• Decision Date: 06 July 1943
• Docket Number: 38123
• Citation: 173 S.W.2d 39,351 Mo. 479
• Parties: Jewell Morris, Appellant, v. E. I. Du Pont de Nemours and Company, a Corporation, and Martin Raithel
• Court: Missouri Supreme Court

173 S.W.2d 39

351 Mo. 479

Jewell Morris, Appellant, v. E. I. Du Pont de Nemours and Company, a Corporation, and Martin Raithel

No. 38123

Supreme Court of Missouri

July 6, 1943

Rehearing Denied July 20, 1943.

Appeal from Circuit Court of City of St. Louis; Hon. Edward M Ruddy, Judge.

Affirmed.

Max G. Baron, J. Edward Gragg, David Baron and Raymond M. Freed for appellant.

(1) Defendant's Instruction 8 is reversibly erroneous because it required plaintiff to "establish" the negligence of defendants. 32 C. J. S., p. 1040; 64 C. J. 721; State v. Davis, 116 S.W.2d 110; Hurzon v. Schmitz, 262 Ill.App. 337; McMasters v. Grand Trunk Ry. Co., 155 Ill.App. 648; Jones v. Monson, 119 N.W. 179; Endowment Rank of Order of K. P. v. Steele, 63 S.W 1126; Van Geem v. Asco Oil Mill, 152 S.W. 1108; Savannah T. & W. Ry. Co. v. Geiger, 20 Fla. 669; Hart v. Hart, 110 S.W. 91. (2) The instruction is reversibly erroneous because it prevents the jury from basing a finding that defendants were in fact negligent upon the probabilities of the evidence. Springfield Fire & Marine Ins. Co. v. Lusk, 223 S.W. 804; Nomath Hotel Co. v. Kansas City Gas Co., 253 S.W. 975. (3) The instruction is reversibly erroneous because it is calculated to deny plaintiff a verdict if the jury entertains any doubt as to whether defendants were negligent. Nelson v. Evans, 93 S.W.2d 691; Morris v. E. I. Du Pont de Nemous & Co., 109 S.W.2d 1222; Sheehan v. Terminal R. Assn., 81 S.W.2d 305; Koebel v. Tieman Coal & Matl. Co., 85 S.W.2d 519; Aly v. Terminal R. Assn., 78 S.W.2d 851; Dempsey v. Horton, 84 S.W.2d 621; Collins v. Beckmann, 79 S.W.2d 1052; Markowitz v. Markowitz, 290 S.W. 119. (4) The instruction is reversibly erroneous because it is an abstract statement of law. Stanich v. Western Union Tel. Co., 153 S.W.2d 54. (5) The instruction is a misleading, confusing, complicated and involved statement of the law with respect to burden of proof. This should constitute reversible error. Mitchell v. Dyer, 57 S.W.2d 1082; Nelson v. Evans, 93 S.W.2d 691; Seago v. New York Cent. R. Co., 164 S.W.2d 336; Eisenbarth v. Powell Bros. Truck Lines, 125 S.W.2d 899; certiorari quashed; State ex rel. v. Hostetter, 137 S.W.2d 461. (6) Instruction 7 given by the court at the request of the defendants is reversibly erroneous in that it in effect tells the jury that it may decide the case without reference to where the weight of the evidence may lie and also it permits the jury to decide what the law is in the case. 64 C. J. 511; Stanich v. Western Union Tel. Co., 153 S.W.2d 54; Baker v. Scott County Milling Co., 43 S.W.2d 441. (7) The trial court committed reversible error in giving to the jury at the request of the defendants instructions 7 and 8 in combination. Unterlachner v. Wells, 278 S.W. 79; Wolfson v. Cohen, 55 S.W.2d 677; Mengel v. St. Louis, 111 S.W.2d 5. (8) The court committed reversible error in giving, at the request of the defendants, Instruction 6 to the jury because, since there was no evidence to support said instruction, it was misleading and confusing to the jury. Hunt v. Armour & Co., 136 S.W.2d 312; Kimmie v. Terminal R. Assn., 66 S.W.2d 561; Gundelach v. Compagnie Generale Trans-Atlantique, 41 S.W.2d 1; Siemers v. St. Louis Elec. Terminal Ry. Co., 155 S.W.2d 130; Missouri Steel & Wire Co. v. Edmonds & Algier, 136 S.W.2d 118. (9) The court committed reversible error in refusing to strike out upon objection by appellant hearsay testimony of defendants' witness that another accident had resulted from the use of the same method of loading a drilled hole as appellant was using when he was injured. (10) The court committed reversible error in refusing to permit counsel for plaintiff to use a textbook in cross-examination of defendants' expert witness, Wilson. Wurst v. American Car & Foundry Co., 103 S.W.2d 6, l. c. 15; Whitley v. Stein, 34 S.W.2d 998; Ganz v. Metropolitan Street Ry. Co., 220 S.W. 490; See, also, Cooper v. Atchison, T. & S. F. R. Co., 148 S.W.2d 773, 779-780.

Jones, Hocker, Gladney & Grand, Lon O. Hocker, Abel Klaw and Lon O. Hocker, Jr., for respondents.

(1) Appellant failed to make a submissible case of negligence. Specific negligence was charged and proof of it was supplied by the opinion of Dr. Cuno, plaintiff's expert, that the friction of sliding the cartridge eighteen inches in a smooth-bore hole caused the detonation. On cross-examination the expert admitted facts demonstrating that the conclusion was impossible, and despite rulings of this court on other records, on this evidence plaintiff makes no case for the jury. Barden v. Northern Pacific, 154 U.S. 288, 322, 14 S.Ct. 1030; Tate v. Western Union Tel. Co., 339 Mo. 262, 96 S.W.2d 364. (2) There was no error in Instruction 8. The use of the word "establish" was not misleading. Century Dictionary; Jager v. First Natl. Bank, 125 Conn. 670, 7 A.2d 919; Houston & T. C. R. Co. v. Johnson, 103 Tex. 320, 127 S.W. 539; Carl v. Settegast, 211 S.W. 506; Torian v. Ashford, 216 Ala. 85, 112 So. 418; Fries v. Royal Neighbors of America, 210 S.W. 130; Southern Express v. Roseman, 206 Ala. 681, 91 So. 612; State v. Davis, 342 Mo. 594, 116 S.W.2d 110; Lindquist v. Kansas City Pub. Serv. Co., 169 S.W.2d 366; Rosenfield v. Industrial Comm., 347 Ill. 176, 29 N.E.2d 103; D. Gottlieb & Co. v. Harrison, 27 F.Supp. 424; Sanders v. Farrier, 271 S.W. 293; In re Abel's Will, 63 Misc. 169, 118 N.Y.S. 429. (3) It was proper to declare proof of a possibility was insufficient. Kimmie v. Terminal R. Assn., 334 Mo. 596, 66 S.W.2d 561. (4) The instruction did not use the word "all," and there is nothing improper in the word anyway. Blankenship v. St. L. P. S. Co., 71 S.W.2d 723. The instruction did not require a finding of no doubt. Ochsner v. Cincinnati Traction Co., 160 Ohio App. 204. (5) The instruction is not abstract: Because of failure to state defendants' evidence, plaintiff cannot complain there was insufficient evidence to support a submission. Rule 15, Sub. 2, Mo. S.Ct. (6) The instruction predicating a negative finding needs no support from the evidence. (7) The instruction is not misleading. It must be read with the other instructions. State ex rel. Powell Bros. v. Hostetter, 345 Mo. 915, 137 S.W.2d 461. (8) There is no conflict between the instructions. Houston T. C. R. Co. v. Johnson, supra. (9) Instruction 7 properly declares the law. Dunlop v. United States, 165 U.S. 486, 17 S.Ct. 375. (10) Instructions 7 and 8 are together correct. (11) Plaintiff not having stated defendants' proof, he cannot here challenge its sufficiency. Gerber v. Kansas City, 311 Mo. 49, 277 S.W. 562. (12) The challenged finding was surplusage. Lindquist v. Kansas City Pub. Serv. Co., 169 S.W.2d 366; Oesterle v. Kroger Gro. & Baking Co., 346 Mo. 321, 141 S.W.2d 780. (13) There was evidence sufficient to prove the submitted hypothesis. Hunt v. Armour & Co., 345 Mo. 677, 136 S.W.2d 316; Kimmie v. Terminal R. Assn., 334 Mo. 596, 66 S.W.2d 561. (14) The motion to strike was properly overruled. It did not specify what was to be stricken. (15) It did not specify the grounds of the objection. Gaty v. United Rys. Co., 251 S.W. 61; Michaels v. Harvey, 195 S.W. 519; Lilly v. Kansas City Rys. Co., 209 S.W. 969; Schroeder v. Wells, 277 S.W. 578. (16) The evidence was purposely elicited by plaintiff. Reed v. Prudential Ins. Co., 229 Mo.App. 90, 73 S.W.2d 1027. (17) There was no error apropos of the textbook. No exception is noted in the bill of exceptions. State ex rel. Brockman Mfg. Co. v. Miller, 241 S.W. 920; Green v. Terminal R. Assn., 211 Mo. 18, 109 S.W. 715.

OPINION

Hyde, J.

This is an action for $ 100,000.00 damages for personal injuries resulting from premature explosion of dynamite in a clay mine. Defendants' answer was a general denial and a plea of contributory negligence. The jury found for defendant and plaintiff has appealed.

This is the third appeal in this court. [Morris v. E. I. Du Pont de Nemours & Co., 341 Mo. 821, 109 S.W.2d 1222 (first appeal): 346 Mo. 126, 139 S.W.2d 984. (second appeal.)] The facts are fully stated in our former opinions and reference is made thereto for the facts. [See also Morris v. E. I. Du Pont de Nemours & Co., 68 F.2d 788.]

Plaintiff's claim is summarized [139 S.W.2d l. c. 986] as follows: "That the dynamite had been purchased from the Du Pont Company who manufactured it; that Raithel, as the employee of the Du Pont Company, had charge of mixing the explosive element, nitroglycerin, with the nonexplosive matter used in the manufacture of the dynamite; that defendants were careless and negligent in unevenly mixing the various elements so that some of it contained too much of the explosive matter and was likely to, and did, explode with slight friction and prematurely; and that the premature explosion which caused plaintiff's injuries was directly due to said negligence."

Plaintiff now assigns error in instructions given by the court at the request of defendant, as follows:

"Instruction No. 6.

"The court instructs the jury that if you find from the facts and circumstances in evidence that the explosion mentioned in the evidence was caused by the blasting cap used to explode the dynamite being so insecurely placed or fastened in the dynamite that it became loosened and free in the drill hole and that the explosion of the dynamite was caused by the premature detonation of the blasting cap, and not by reason of improper mixture of the dynamite, then plaintiff cannot recover against either of the defendants, and your verdict must be in favor of both defendants.

"Instruction No. 7.

"The court instructs you that it is your duty in considering the evidence, deliberating upon and determining the facts in this case to first decide upon the question as to whether, under all the facts and circumstances, there was or was...