Pevesdorf v. Union Electric L. & P. Co.

• Decision Date: 19 October 1933
• Docket Number: No. 31151.,31151.
• Citation: 64 S.W.2d 939
• Court: Missouri Supreme Court
• Parties: BERNARD PEVESDORF v. UNION ELECTRIC LIGHT & POWER COMPANY, Appellant.

64 S.W.2d 939

BERNARD PEVESDORF v. UNION ELECTRIC LIGHT & POWER COMPANY, Appellant.

No. 31151.

Supreme Court of Missouri, Division 1.

October 19, 1933.

Appeal from Circuit Court of City of St. Louis. — Hon. James F. Green, Judge.

REVERSED AND REMANDED.

Theodore Rassieur. George M. Rassieur and John P. McCammon, Jr., for appellant.

(1) Under all the evidence plaintiff was not entitled to the submission of the case to the jury, for the reason that the evidence does not show negligence on the part of the defendant and does not show any causal connection between the negligence of the defendant, if any, and the injuries sustained by plaintiff. Defendant's requested peremptory instruction should, therefore, have been given. (a) There was a failure of proof — (1) That defendant's garage was not properly ventilated at the time plaintiff fainted. (2) That the ventilation facilities provided were inadequate. (3) That the doors and windows were not open. (4) That there was an accumulation of carbon monoxide gas. (5) That plaintiff's injuries were induced by or resulted from inhalation of carbon monoxide gas. Globe Accident Ins. Co. v. Gerisch, 45 N.E. 563; State ex rel. City of Macon v. Trimble, 12 S.W. (2d) 731; Van Bibber v. Swift & Co., 286 Mo. 333; Warner v. Ry. Co., 178 Mo. 133; Hamilton v. Ry. Co., 318 Mo. 134; Goransson v. Mfg. Co., 186 Mo. 308. (b) The evidence tends to show that plaintiff's condition may be due to either of two causes, trauma or carbon monoxide, for only one of which (carbon monoxide) defendant can be held liable. This being true, it was error to submit the case to the jury and permit it to speculate as to the cause of plaintiff's condition. Hamilton v. Ry. Co., supra; Goransson v. Mfg. Co., supra; Wright v. Order of U.C.T. 174 S.W. 834; Strother v. Railroad Co., 188 S.W. 1105. (c) The negligence of the defendant can only be deduced by the cumulation of inferences, in violation of the rule that inferences cannot be drawn from inferences, but must be drawn from facts. State ex rel. v. Cox, 298 Mo. 432; Guthrie v. Holmes, 272 Mo. 233, Hays v. Hogan, 273 Mo. 25, 200 S.W. 286, L.R.A. 1918C, 715, Ann. Cas. 1918E, 1127; Sweringen v. Railroad, 221 Mo. 660; Yarnell v. Railroad, 113 Mo. 580. (d) The testimony of plaintiff's experts does not tend to show that plaintiff's condition is due to carbon monoxide and is wholly without value or probative force. De Donato v. Wells, 41 S.W. (2d) 187; O'Leary v. Scullin Steel Co., 303 Mo. 381. (2) Instruction 3, given at plaintiff's request, was erroneous, because (a) The petition charges that defendant failed to ventilate plaintiff's place of work, and Instruction 3 directs a recovery if the jury finds that there was a failure to remove gases by ventilation "or in some manner," thereby broadening the issues and giving the jury a roving commission to find for plaintiff. Allen v. Mo. Pac. Ry., 294 S.W. 87; Kuhlman v. Water, Light & Transit Co., 307 Mo. 635; State ex rel. v. Ellison, 270 Mo. 653; Degonia v. Railroad, 224 Mo. 589; Lauff v. Carpet Co., 186 Mo. App. 137; Beave v. Transit Co., 212 Mo. 352; Feldewerth v. Railroad, 181 Mo. App. 640. (b) The sole negligence charged in the petition is that defendant did not exercise ordinary care to furnish plaintiff a safe place to work in that the ventilation was insufficient, and Instruction 3 directed a verdict if the jury found that defendant failed to exercise reasonable care to have said place safe, without limiting them to a finding of inadequate ventilation, thus broadening the issues. Cases cited under Point 2 (a), supra. (c) It ignored the issue of ratification of the release pleaded and directed a verdict for plaintiff, even though the jury believed plaintiff had ratified said release. Nelson v. Kansas City Pub. Serv. Co., 30 S.W. (2d) 1047; Hanna v. Butz, 14 S.W. (2d) 37; Luft v. Strobel, 322 Mo. 977, 19 S.W. (2d) 721; Macklin v. Fogel Const. Co., 31 S.W. (2d) 19. (d) It is in irreconcilable conflict with given Instructions 6 and 7. State ex rel. v. Ellison, 270 Mo. 655; Kuhlman v. Water, Light & Transit Co., 307 Mo. 637; Smith v. Pub. Serv. Co., 328 Mo. 997; Sloan v. Polar Wave Ice & Fuel Co., 19 S.W. (2d) 482. (3) Instruction 5 given at plaintiff's request was erroneous, because, (a) It authorizes a finding that the release was no defense, even though the jury may have believed plaintiff ratified the release by accepting and retaining the consideration therefor. Cases cited supra under Point 2 (c). (b) It singles out and emphasizes plaintiff's testimony as to the destruction of the release. Dungan v. Railroad, 178 Mo. App. 171; C.I.T. Corp. v. Hume, 48 S.W. (2d) 157; Moffett v. Butler Mfg. Co., 46 S.W. (2d) 873; Rice v. Jefferson City Bridge & Transit Co., 216 S.W. 751; Costello v. Kansas City, 280 Mo. 587; Zumwalt v. Railroad, 266 S.W. 726. (c) It constitutes comment on the evidence. Messer v. Gentry, 220 Mo. App. 1301; Cases cited supra under Point 3 (b). (d) It is in irreconcilable conflict with given Instructions 6 and 7. Cases cited supra under Point 2 (d).

Foristel, Mudd, Blair & Habenicht for respondent.

(1) The inquiry concerning the sufficiency of evidence proceeds under the settled rule that respondent is entitled to "the most favorable view of the most favorable evidence in the case;" and to every reasonable inference such evidence warrants; and that countervailing evidence and inferences must be rejected. Sullivan v. Ry., 308 Mo. 66; Anderson v. Asphalt Distributing Co., 55 S.W. (2d) 693; Williams v. Ry., 257 Mo. 112; Buesching v. Gas Light Co., 73 Mo. 231; Karguth v. Coal & Coke Co., 299 Mo. 597; Sexton v. Sexton, 295 Mo. 143. (2) The jury were entitled to believe all the testimony of any witness, or none of it, or believe part of it and reject any part of it, just as they deemed it true or false, when considered with the rest of the whole evidence. Gould v. Ry. Co., 315 Mo. 723; Frankel v. Hudson, 271 Mo. 503; Schumacher v. Breweries Co., 247 Mo. 155. (3) It was the jury's province to determine whether they would credit denials and qualifications of admissions of appellant and testimony of its witnesses. Davidson v. Ry. Co., 301 Mo. 86; Steele v. Ry. Co., 302 Mo. 219. (4) Appellant's contention that there was a failure of proof as to lack of proper and adequate ventilation is based upon a misconception of (1) the petition and (2) the meaning of the words "to ventilate" and "ventilation." Webster's New International Dictionary. (5) "Tuning up cars" necessarily includes the operation of their motors. Webster's New International Dictionary (1926), under "New Words," bottom of p. CVII; Standard Dictionary, the verb "tune," under (4). (6) The "two-cause" doctrine is inapplicable to this record. (1) There is no substantial evidence of any cause save carbon monoxide; (2) there is convincing evidence that carbon monoxide did cause respondent's condition and there is conclusive evidence that blows did not cause it. Substantial evidence of the proximity of carbon monoxide as the cause was enough. There was much more than that. Cech v. Chemical Co., 323 Mo. 616; Baker v. Ry. Co., 327 Mo. 1005; Stewart v. Gas Light Co., 241 S.W. 912; Thompson v. City, 322 Mo. 538; Solomon v. Light & Power Co., 303 Mo. 640. (7) "When there is substantial evidence that a circumstance resulting in injury occurred in one of two or more ways, such evidence does not present a case of mere guess or conjecture." "We enter the field of conjecture only in the absence of proof; when proof enters, conjecture disappears." Baker v. Ry. Co., 327 Mo. 1005; Conner v. Ry. Co., 181 Mo. 411. (8) The rule concerning "inference upon inference" or "presumption upon presumption" has no application to the case at bar. Every element of respondent's case is proved by convincing evidence. In addition, this court no longer gives much heed, if any, to this so-called rule. It should be given none. Martin v. Ry. Co., 329 Mo. 736; 1 Wigmore on Evidence (2 Ed.), sec. 41, pp. 258-260. (9) There was no delivery of the "release" Lack of delivery is lack of execution and without execution there is no release. Copying Co. v. Muleski, 138 Mo. App. 423; Met. Pav. Co. v. Inv. Co., 309 Mo. 652; Chalmers v. Rys. Co., 153 Mo. 60; McCoy v. Const. Co., 216 S.W. 772; 23 R.C.L., sec. 42, p. 413. (10) There was no delivery of the "release." There is no evidence of subsequent delivery or agreement, express or implied, concerning that paper. It follows that there was no release and that there was no ratification. Rau v. Robertson, 260 S.W. 756; Smallwood v. Ry. Co., 263 S.W. 554; McCoy v. Const. Co., 216 S.W. 772; Met. Paving Co. v. Investment Co., 309 Mo. 652. (11) Proof that another has been overcome by fumes in the same place is admissible. E.I. Dupont De Nemours Co. v. White, 8 Fed. (2d) 5; Cropper v. Pigment Co., 47 Fed. (2d) 1042. (12) There was no error in admitting the testimony of Dr. Deppe in rebuttal. In any event there was no abuse of discretion. Meyers v. Drake, 324 Mo. 626; Ternetz v. Lime & Cement Co., 252 S.W. 71. (13) It is assumed on appeal that the jury considered the charge as a whole. It cannot be assumed that the jury put a strained construction upon any one instruction or, disregarding all the other instructions bearing on the same subject, isolated and separated one instruction from the others and relied upon it. Patterson v. Evans, 254 Mo. 293; Hicks v. Vieths, 46 S.W. (2d) 608. (14) When the instructions given cover the case it is not error to refuse other instructions even if they are correct in form. Tripp v. Bank, 315 Mo. 906; Moll v. Pollack, 319 Mo. 766.

HYDE, C.

This is an action for damages for injuries, alleged to have resulted from carbon monoxide gas poisoning, while plaintiff was employed in defendant's garage. Plaintiff's petition charged failure to furnish plaintiff a safe place of work in the following respects: That defendant negligently allowed the engines of automobiles to be run in the garage so as to permeate it...