Pandjiris v. Oliver Cadillac Co.

• Decision Date: 12 November 1936
• Citation: 98 S.W.2d 978,339 Mo. 726
• Parties: Milton Pandjiris v. Oliver Cadillac Company, a Corporation, Appellant
• Court: Missouri Supreme Court

98 S.W.2d 978

339 Mo. 726

Milton Pandjiris v. Oliver Cadillac Company, a Corporation, Appellant

Supreme Court of Missouri

November 12, 1936

Appeal from Circuit Court of City of St. Louis; Hon. Robert W McElhinney, Judge.

Affirmed (upon condition).

Fred H. Blades, Moser, Marsalek & Dearing and Wm. H Allen for appellant.

(1) Since plaintiff's own proof was such as to permit no inference other than that the falling of this piece of brick upon his wife was directly and proximately due to the opening of one of the revolving windows of this building by some one on the third floor thereof -- who, under the circumstances may well have been some one for whose act defendant was not responsible -- plaintiff was not entitled to invoke the res ipsa loquitur rule. Conduitt v. Gas & Electric Co., 326 Mo. 143; Price v. Met. St. Ry. Co., 220 Mo. 456; Porter v. St. J. Ry., L., H. & P. Co., 311 Mo. 76. McAnany v. Shipley, 189 Mo.App. 396. (a) And since plaintiff cannot rely upon the res ipsa loquitur rule, if from plaintiff's proof it may be said that any presumption or inference may arise that the window was negligently opened by some one for whose act defendant would be responsible, such presumption or inference, if any, disappeared upon the coming in of defendant's proof showing that the act causing the injury, namely, the pushing outward of the sash of the window, was not the act of any agent or employee of defendant, but that of a trespasser on defendant's premises, an intruder or interloper who had no right to be there at all. George v. Mo. Pac. Ry. Co., 213 Mo.App. 674; Rashall v. Railroad Co., 249 Mo. 523; Burge v. Railroad Co., 244 Mo. 94; Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 341, 77 L.Ed. 823; State ex rel. Kurz v. Bland, 333 Mo. 947; Gray v. Railroad Co., 24 F.2d 671. (b) To make out a case for the application of the doctrine of res ipsa loquitur, the facts relied on must be such as to reasonably exclude any other hypothesis than that of the negligence claimed. Grindstaff v. Goldberg & Sons Struct. Steel Co., 328 Mo. 80; Removich v. Construction Co., 264 Mo. 43; The President Wilson, 5 F.Supp. 686. (2) The trial court erred in giving Instruction 1 at the instance and request of the plaintiff, for the reason that the instruction proceeded upon the erroneous theory that plaintiff was entitled to "compensation" for the injuries sustained by his wife, rather than for such loss and damage as he may have sustained by reason of loss of her domestic services, society or companionship, or by reason of expense incurred by him by reason of her injuries. And this instruction, while purporting to cover the entire case and directing a verdict for the plaintiff, erroneously omitted to require the jury to find an essential element of plaintiff's right to recover, namely, that plaintiff suffered loss and damage of such character as is recoverable by a husband on account of injuries sustained by his wife. Hopkins v. Railroad Co., 33 S.W.2d 1009; Alexander v. K. C. Rys. Co., 231 S.W. 66. And since this instruction omitted to require a finding of an essential element of plaintiff's case, it cannot be cured by any other instruction or instructions given. Alexander v. K. C. Rys. Co., 231 S.W. 68; State ex rel. Lusk v. Ellison, 271 Mo. 463; Hopkins v. Railroad Co., 33 S.W.2d 1011.

Walter Wehrle, Harvey B. Cox and Foristel, Mudd, Blair & Habenicht for respondent.

(1) The court properly refused to direct peremptorily a verdict for the defendant, because: (a) The evidence, on plaintiff's behalf, that a brick out of the wall of the building owned by and in the exclusive possession and control of defendant fell from an upper floor of the building and struck and injured plaintiff's wife while she was on the public sidewalk, resulting in damage to plaintiff, as her husband, constituted a case for the jury under the res ipsa loquitur doctrine. Walsh v. S.W. Bell Tel. Co., 331 Mo. 125; State ex rel. Stein v. Becker, 334 Mo. 749; Kuether v. K. C. L. & P. Co., 220 Mo.App. 458; Kean v. Piano Co., 206 Mo.App. 179; Manson v. May Dept. Stores Co., 71 S.W.2d 1082; 45 C. J., sec. 771, p. 1201. (b) Plaintiff's evidence did not show what caused the brick to fall. Lober v. Kansas City, 74 S.W.2d 815; State ex rel. Stein v. Becker, 334 Mo. 749. (c) Defendant's evidence could not destroy the submissible case for the jury on plaintiff's evidence sufficient under the res ipsa loquitur doctrine. Lober v. Kansas City, 74 S.W.2d 815; Conduitt v. Gas & Electric Co., 326 Mo. 143; Harke v. Haase, 335 Mo. 1109; Bond v. Ry., 315 Mo. 1002. (d) Even defendant's evidence did not show the "cause" of the brick falling. It did not show how or why merely opening the window could, or that it did, cause the brick of the wall of the building to fall. Cases under (b) and (c). (2) Plaintiff and his wife at age thirty-seven have a life expectancy of about thirty years, during which he will be damaged by loss of her services and consortium. This court and the Missouri Courts of Appeals have habitually sustained verdicts for mere loss of services of children in sums proportionately much larger than the $ 20,000 awarded in this case, although in those cases the parents' recovery is limited by law to strict loss of services without any allowance of anything comparable to the husband's right to damage for loss of consortium. Hornbuckle v. McCarty, 295 Mo. 173; Meeker v. Union E. L. & P. Co., 216 S.W. 934; Pulsifer v. City of Albany, 226 Mo.App. 546; Miller v. Hotel Savoy, 228 Mo.App. 468; Clayton v. Hydraulic Pressed Brick Co., 27 S.W.2d 57; Marx v. Parks, 39 S.W.2d 575; Stumbo v. Duluth Zinc Co., 100 Mo.App. 640; Cunningham v. Doe Run Lead Co., 220 Mo.App. 49; Dando v. Home Tel. Co., 140 Mo.App. 521; Kemp v. Doe Run Lead Co., 57 S.W.2d 762; Klusman v. Harper, 221 Mo.App. 1114. (a) Respondent is entitled to recover for any impairment of the strength, health and usefulness of his wife, as a wife and helpmate, and for any diminution of the benefits to him of her society, companionship, management and direction of the home and its affairs, as well as for loss or diminution of her services to him and the home. Furnish v. Ry. Co., 102 Mo. 676; Reeves v. Lutz, 179 Mo.App. 84. (b) No direct proof of such losses to the husband is or could be required and the assessment of "compensation therefor must necessarily be left to the sound discretion and judgment of the triers of the facts." Furnish v. Ry. Co., 102 Mo. 677; Reeves v. Lutz, 179 Mo.App. 85.

OPINION

Hays, J.

The plaintiff's wife, Verda Pandjiris, while on a public sidewalk in St. Louis in front of an abutting building owned by and in the exclusive possession and control of the defendant Oliver Cadillac Company, was struck by a brick out of the wall of said building, which fell from an upper floor thereof, causing injuries to her resulting in loss and injury to him, as her husband, for which he brought this suit to recover damages in the Circuit Court of St. Louis County. The trial resulted in a verdict and judgment in his favor for $ 22,191, and the defendant took this appeal.

In an action brought by the plaintiff's wife for damages for the injuries she sustained in that casualty she recovered a judgment for $ 30,000 from which defendant brought an appeal to this court. That case, Verda Pandjiris, respondent, v. Oliver Cadillac Company, a corporation, appellant, 339 Mo. 711, 98 S.W.2d 969, is decided concurrently with this one and may well, for the sake of brevity, be taken as the background for our consideration of the instant case; it is largely determinative of the question of legal liability, and should be read in connection with this opinion.

The grounds of error here assigned are (1) to the refusal of the demurrer offered at the close of the case, (2) to the giving of plaintiff's Instruction No. 1, and (3) to the amount of the verdict as being grossly excessive and indicative of passion and prejudice.

As to the first contention we make the same ruling as was made on a similar contention in the companion case.

Before taking up the instruction it is well to set out evidence additional to what is stated in the wife's case and bearing specially upon the issue of the husband's indirect injuries upon which this action is based. The substance of this additional evidence follows: Since the injury she is not herself at all. She always wanted to talk before and was rather talkative and liked to have friends. Now she is silent and sad, wants to be alone, walks nervously about, and cannot get her mind on anything. She has lost interest in everything she and her husband enjoyed before. Her nights are restless. She just does not want to go any place or mingle with her and her husband's friends. From an affectionate and passionate wife she changed immediately to the contrary and is unable to perform any wifely function. She has lost her art of piano playing, and has grown obese from inability to safely exercise. She tries to be her former self, but cannot amend her unfortunate condition. "She is as good as she is going to be," said Dr. Funsch, her attending physician; "she will never get better, though she may get worse." She has never been able and is not now able to do...