Pandjiris v. Oliver Cadillac Co.

• Decision Date: 12 November 1936
• Parties: Verda Pandjiris v. Oliver Cadillac Company, a Corporation, Appellant
• Court: Missouri Supreme Court

98 S.W.2d 969

339 Mo. 711

Verda 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. Fred. E Mueller, Judge.

Affirmed (upon condition).

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

(1) The trial court erred in refusing peremptorily to direct a verdict for defendant as requested by its counsel at the close of plaintiff's case and again at the close of all the evidence in the case. (a) Since plaintiff's own proof as to the cause of the falling of the piece of brick was specific, such as to permit no inference other than that the falling thereof was directly and proximately due to the pushing open of one of the revolving windows of this building by some one on the third floor thereof, 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. (b) Furthermore, 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. Plaintiff's evidence was not of such character. Grindstaff v. Goldberg & Sons Struct. Steel Co., 328 Mo. 80; Removich v. Construction Co., 264 Mo. 43; The President Wilson, 5 F.Supp. 686. (c) Since the case is not one for the application of the res ipsa loquitur rule, from plaintiff's proof no presumption or inference arose that the window was negligently opened by some one for whose act defendant would be responsible -- the building being crowded with people viewing the parade; and if such presumption or inference could have so arisen it would have instantly 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. (2) The trial court erred in unduly restricting defendant's right to cross-examine Dr. Deppe, a medical witness for plaintiff, for the purpose of impeachment and to test his qualifications, by sustaining plaintiff's objection to the cross-examination of said witness in regard to his treatment of one Adeline Chegrew and erred in refusing defendant's offer to prove what occurred in that connection. Defendant was entitled to test Dr. Deppe's qualifications, and to show, if it could, that his opinions were not reliable. The greatest latitude is allowed in such a cross-examination, and it was prejudicial error to restrict the same as the trial court did. Conway v. Met. St. Ry. Co., 161 Mo.App. 87; Brendell v. Union E. L. & P. Co., 252 S.W. 640; Mueller v. St. Louis Hospital Assn., 5 Mo.App. 401. Adverse counsel, in cross-examining a medical witness, is not required to base his questions on facts disclosed by the evidence. Conway v. Railroad Co., 161 Mo.App. 87; Kansas City v. Oil Co., 140 Mo. 474. (3) The trial court committed error prejudicial to defendant in permitting plaintiff, over defendant's objections, to testify that her eyesight became impaired after the injury and prior to the trial. There was no allegation in the petition that plaintiff's eyes were impaired or affected by the injury involved in the suit, and impairment of eyesight was by no means a necessary result of the injuries that were alleged in the petition. Consequently the admission of this testimony was prejudicial error. Hall v. Coke & Coal Co., 260 Mo. 372; Rosenweig v. Wells, 308 Mo. 617; McElroy v. Swenson Const. Co., 213 Mo.App. 171; Shafer v. Harvey and Dunham, 192 Mo.App. 504. (4) The trial court committed prejudicial error in permitting plaintiff's counsel, over defendant's objections, to make highly improper, inflammatory and prejudicial argument to the jury. (a) It was error to permit plaintiff's counsel to argue to the jury that "the law presumes that it (the brick) fell because of the negligence of the defendant," and that "then it is incumbent on the defendant to come in and explain that there was absolutely no negligence on its part." Such is not the law. McCloskey v. Koplar, 329 Mo. 527; Steffen v. Telegraph Co., 56 S.W.2d 47. (b) The statement that plaintiff's husband was just a truck driver was a plain, unvarnished appeal to the jury to take into consideration the supposed poverty of plaintiff and her husband and their humble station in life, and when permitted to be made with the court's approval constituted reversible error. Beer v. Martel, 55 S.W.2d 484; Smith v. Ry. Co., 31 S.W.2d 107; Hendrick v. Kauffman, 66 S.W.2d 985; New York C. Railroad Co. v. Johnson, 279 U.S. 310, 73 L.Ed. 706; Bishop v. Hunt, 24 Mo.App. 377; Dayharsh v. Ry. Co., 103 Mo. 577; Ryan v. Sheffield Car & Equip. Co., 24 S.W.2d 169. (5) The verdict, for the round sum of $ 30,000, is excessive, and so grossly excessive as to plainly indicate that it is the result of bias, prejudice or mistake engendered by the said highly improper argument of plaintiff's counsel and the said improper admission of testimony relative to the measure of damages. Dorman v. Ry. Co., 75 S.W.2d 854; Gilchrist v. Railroad Co., 254 S.W. 165; Lackey v. Ry. Co., 305 Mo. 260; Spencer v. Railroad Co., 317 Mo. 505; Boyer v. Railroad Co., 293 S.W. 386; Clark v. Ry. Co., 324 Mo. 406; Cole v. Ry. Co., 332 Mo. 999; Brucker v. Gambaro, 9 S.W.2d 918; Applegate v. Railroad Co., 252 Mo. 173; Corn v. Kansas City Ry. Co., 228 S.W. 78; Loof v. Kansas City Rys. Co., 246 S.W. 578; Harlan v. Wab. Ry. Co., 73 S.W.2d 749.

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 while she was on the public sidewalk, 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. Light & Power 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. Co., 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). (e) If merely opening the window could cause the brick to fall into the public highway, it would be no defense that a trespasser or unauthorized person opened the window. The defendant was bound to anticipate that some one might open the window which was designed and equipped to be opened, and even if it were negligent to open the window, that negligence would merely be "concurrent." Restatement of the Law of Torts, secs, 439, 441 (c), 447; Hogan v. Fleming, 317 Mo. 536; Harrison v. K. C. Elec. L. Co., 195 Mo. 623; Shafir v. Sieben, 233 S.W. 423. (2) The verdict is not excessive. Capstick v. Sayman Products Co., 327 Mo. 1; Potashnick v. Pearline, 43 S.W.2d 790; Margulis v. Natl. Enameling & Stamping Co., 324 Mo. 420; Martin v. Railway Co., 329 Mo. 729; Rose v. Telegraph Co., 328 Mo. 1009; Span v. Jackson, Walker Coal & Mining Co., 16 S.W.2d 190. (a) The exposure to death or further serious injury by the existing hole in plaintiff's skull, and plaintiff's susceptibility to epilepsy, paralysis and insanity, are all actually present, existing conditions which will continue in the future, for which plaintiff is entitled to substantial damages, in addition to that for pain, suffering and other injurious results and disabilities. (b) The wound and scar, so horrible and repulsive that the defendant and the court would not allow the jury to examine it, and the mental suffering caused plaintiff by contemplation of that affliction, constitute, independent of other results, the basis for substantial damages. (c) Plaintiff is entitled to damages for mental anguish, past, present and future, caused by the continued, existing reasonable possibility that epilepsy, paralysis or insanity may develop, even if the jury found that the actual future development thereof is not sufficiently certain to constitute an independent basis of recovery. Butts v. Natl. Exch. Bank, 99 Mo.App. 173; Lowe v. Met. St. Ry., 145 Mo.App. 256; Mollman v. Union E. L. & P., 206 Mo.App. 261; 8 R. C. L., p. 524, sec. 78; 20 L. R. A. (N. S.) 458; Mayne v. K. C. Rys., 287 Mo. 247; Miller v. Harpster, 273 Mo. 612; Schmitz v. Railroad Co., 119 Mo. 277; Shortridge v. Scarritt, 145 Mo.App. 304; 15 L. R. A. (N. S.) 775; L. R. A. 1916E, 898.

OPINION

Hays, J.

In this action for damages for personal injuries the Oliver Cadillac Company, a corporation, has appealed from an...