Noce v. St. Louis-San Francisco Ry. Co.

• Decision Date: 30 July 1935
• Citation: 85 S.W.2d 637,337 Mo. 689
• Parties: Dora Noce, Executrix of the Last Will and Testament of Henry H. Noce, v. St. Louis-San Francisco Railway Company, a Corporation, Appellant
• Court: Missouri Supreme Court

85 S.W.2d 637

337 Mo. 689

Dora Noce, Executrix of the Last Will and Testament of Henry H. Noce, v. St. Louis-San Francisco Railway Company, a Corporation, Appellant

Supreme Court of Missouri

July 30, 1935

Rehearing Overruled July 30, 1935.

Appeal from Circuit Court of City of St. Louis; Hon. Granville Hogan, Judge.

Affirmed.

J. W Jamison, A. P. Stewart and C. H. Skinker, Jr., for appellant.

(1) The demurrer to the evidence should have been sustained and the peremptory instruction requested by defendant at the close of the whole case should have been given. (a) The res ipsa loquitur doctrine upon which plaintiff relies is not applicable to plaintiff's case. 45 U.S.C. A., sec. 51; Patton v. Ry. Co., 179 U.S. 663; Seaboard Air Line v. Horton, 233 U.S. 502; Looney v. Railroad Co., 200 U.S. 486; Delaware, etc., Railroad v Koske, 279 U.S. 11; N. Y. C. Railroad Co. v. Ambrose, 280 U.S. 490; Mo. Pac. Railroad Co. v. Aeby, 275 U.S. 429; Payne v. Bucher, 270 F. 40; Waldhier v. Railroad Co., 71 Mo. 516; Smith v. Railroad Co., 113 Mo. 82; Hamilton v. Railroad Co., 123 Mo.App. 619; See v. Railroad Co., 228 S.W. 518; Ramovich v. Construction Co., 264 Mo. 48; Wilson v. Railroad Co., 319 Mo. 315, certiorari denied, 278 U.S. 622. (b) The demurrer to the evidence should have been sustained because the evidence showed that plaintiff had been discharged as executrix and that there was no personal representative of the deceased. The widow and children, although beneficiaries, cannot maintain the suit because, under the Federal Employers' Liability Act, the cause of action is vested exclusively in the personal representative of the deceased, and in the absence of such personal representative there can be no recovery. 45 U.S.C. A., sec. 51; Railroad v. Birch, 224 U.S. 547; St. L. & S. F. Ry. v. Seale, 229 U.S. 156; Wells v. Davis, 261 S.W. 62; Hearst v. Ry. Co., 173 S.W. 86. (2) The court erred in giving Instruction 1 at the instance and on behalf of plaintiff. (a) Instruction 1, given for plaintiff, is erroneous in that it authorizes a verdict for plaintiff upon a finding by the jury that the hurling of said face plate or hub filler from said locomotive engine was "caused by negligence on the part of the defendant," and fails to require any finding that said hub filler was defective or that defendant had knowledge, actual or constructive, of such defect, if any, and fails to require the jury to find defendant or its employees guilty of any act or omission constituting negligence as a prerequisite to a verdict for plaintiff. The mere happening of this accident is not, in and of itself, sufficient evidence upon which to predicate a verdict against the defendant. Authorities under Point 1(a). (b) Instruction 1, given for plaintiff, is further erroneous in that it predicates a verdict for plaintiff upon a finding by the jury "that the plaintiff is the duly appointed, qualified and acting executrix of the last will and testament of said Henry H. Noce, deceased," when the record of the probate court, where plaintiff was appointed, showed that she had been discharged as executrix long prior to the trial. Authorities under Point 1(b). The solemn record of the probate court showing the discharge of plaintiff as executrix of the estate of Henry H. Noce, deceased, is not open to collateral attack and cannot be disproved by any statement or certificate of the judge of the court as to the status of his records. 5 Wigmore on Evidence, p. 350; 22 C. J. 1079; State v. Faith, 180 Mo.App. 491; Lamothe v. Lippott, 40 Mo. 88; McIntyre v. Ry. Co., 286 Mo. 244. (3) The court erred in refusing to give Instruction C, requested by defendant. Defendant at all times insisted that deceased received his fatal injuries as the result of an accident and not as the result of negligence on the part of the defendant. Instruction C is an instruction on accident, in approved form, and is particularly applicable to the facts in this case. The court's refusal to give said requested instruction, presenting to the jury defendant's theory of the case, was highly prejudicial and constituted reversible error. Sawyer v. Railroad Co., 37 Mo. 262; Henry v. Ry. Co., 113 Mo. 537; Patrum v. Railroad Co., 259 Mo. 124; Lehnerts v. Otis Elevator Co., 256 S.W. 822. (4) The verdict of the jury is grossly excessive, and the judgment is still grossly excessive, notwithstanding the remittitur. Burtch v. Ry. Co., 236 S.W. 347; Willgues v. Railroad Co., 298 S.W. 826.

Charles L. Moore and Allen, Moser & Marsalek for respondent.

(1) The evidence adduced by plaintiff clearly made a case to which the res ipsa loquitur rule was applicable, making it incumbent upon the trial court to submit the case to the jury. Lowery v. Ry. Co., 60 F.2d 78; Cochran v Railroad Co., 31 F.2d 769; Chesapeake & O. Ry. Co. v. Smith, 42 F.2d 111; Central Railroad Co. v. Peluso, 286 F. 661, certiorari denied 261 U.S. 613, 67 L.Ed. 827; B. & O. Railroad Co. v. Kast, 299 F. 419; Byers v. Carnegie Steel Co., 159 F. 347; McCloskey v. Koplar, 46 S.W.2d 557; Lober v. Kansas City, 74 S.W.2d 815; Manson v. May Department Stores Co., 71 S.W.2d 1081; Thompson v. Railroad Co., 243 Mo. 336; Burns v. United Rys. Co., 176 Mo.App. 330; Howard v. Railroad Co., 179 Ill.App. 380; B. & O. Railroad Co. v. Hill, 84 Ind.App. 354, 148 N.E. 489, certiorari denied 273 U.S. 734, 71 L.Ed. 867; Illinois Cent. Railroad Co. v. Halterman, 208 Ky. 811, 271 S.W. 1103; Deputla v. Railroad Co., 166 A. 87, certiorari denied 290 U.S. 644, 78 L.Ed. 559; Southern Ry. Co. v. Wilkins, 178 N.E. 454, certiorari denied 287 U.S. 635, 77 L.Ed. 550; Lamb v. Railroad Co., 179 N.C. 619, 103 S.E. 440; Manning v. Railroad Co., 135 Minn. 229, 160 N.W. 787. (a) It is now well settled that the res ipsa loquitur rule is applicable to cases arising under the Employers' Liability Act, which, as to employees of carriers by railroad engaged in interstate commerce, abolished the common law fellow-servant rule. Lowery v. Ry. Co., 60 F.2d 78; Cochran v. Railroad Co., 31 F.2d 767; Chesapeake & O. Railroad Co. v. Smith, 42 F.2d 111; Central Railroad Co. v. Peluso, 286 F. 661; B. & O. Railroad v. Kast, 299 F. 423. Authorities under Point 1. Even at common law the res ipsa loquitur rule is applicable as between master and servant where the facts of the case bring it within the reason for the rule. Blanton v. Dold, 109 Mo. 64; Klebe v. Parker Distilling Co., 207 Mo. 488. (b) The res ipsa loquitur doctrine applies where, as here, the offending instrumentality is under the exclusive management and control of the defendant, and the defendant possesses superior knowledge or means of information as to the cause of the occurrence resulting in the injury, and the occurrence is one of such character as to warrant the inference that it would not have occurred if due care had been exercised. The rule is specially applicable to cases in which objects, under the management and control of the defendant, are permitted to fall, or to be hurled through the air, or to swing out or protrude from a passing train or car. McCloskey v. Koplar, 46 S.W.2d 560; Thompson v. Railroad Co., 243 Mo. 336; Howard v. Railroad Co., 179 Ill.App. 380; Manson v. May Department Stores Co., 71 S.W.2d 1082; Burns v. United Rys. Co., 176 Mo.App. 330; Kean v. Piano Co., 206 Mo.App. 170; Scott v. Davis, 270 S.W. 433; Delaware & H. Co. v. Dix, 188 F. 901; Savannah, etc., Railroad Co. v. Slater, 92 Ga. 391, 17 S.E. 350; Hawser v. Railroad Co., 80 Md. 146, 30 A. 906; Goldstein v. Levy, 132 N.Y.S. 373, 74 Misc. 463; 45 C. J., pp. 1201, 1202, sec. 771. (c) And plaintiff did not lose the benefit of the res ipsa loquitur rule by adducing testimony that the hub liner showed signs of wear and the opinion of an expert that it was loose when the engine was last inspected, since this did not definitely or clearly show what caused it to break and be hurled from the engine. Glasco Elec. Co. v. Union E. L. & P. Co., 332 Mo. 1086; Conduit v. Gas & Elec. Co., 326 Mo. 143; Price v. Met. St. Ry. Co., 220 Mo. 456. (d) There is no merit in the contention that the evidence showed that plaintiff was not the qualified and acting executrix of the estate of her deceased husband at the time of the trial below. Defendant's evidence merely tended to show that plaintiff was discharged as such executrix on October 11, 1929; whereas plaintiff's proof showed that on December 3, 1929, she was still the qualified and acting executrix of such estate. The presumption, of course, is that the order of October 11, 1929, having been improvidently made, was set aside prior to December 3, 1929. (e) Not only could said order have been lawfully set aside during the term, but it could have been lawfully set aside after the term for fraud, accident or mistake. Gahan v. Golden, 330 Ill. 624, 162 N.E. 164. (f) And had it remained in effect, it would not have destroyed the relation so as to leave plaintiff without capacity to continue the action. Haslett v. Blakeley, 70 Neb. 613, 97 N.W. 808; Fraser v. Fraser, 149 Ill.App. 186. Indeed, it seems that the probate court was without authority to make such an order at the time and that it was utterly void. Wyatt v. Stillman Institute, 303 Mo. 106. (2) The trial court committed no error in refusing the accident instruction, marked C, offered by defendant. It is now settled that it is only where the evidence shows that the casualty resulted from an unknown or an unassignable cause that an accident instruction may be given. Hogan v. Pub. Serv. Co., 322 Mo. 1103; Wright v. Quattrochi, 330 Mo. 180; Brewer v. Silverstein, 64 S.W.2d 292; Wilson v. Chattin, 72 S.W.2d 1002. (3) And since it appears that Noce was conscious and suffered excruciating pain and torture for something like three hours, if not more, before his death, the jurors were at liberty, in...