Schuler v. St. Louis Can Co.

• Decision Date: 05 April 1929
• Parties: Anton Schuler, Public Administrator, in Charge of Estate of Helen Frank Roth, v. St. Louis Can Company, Appellant
• Court: Missouri Supreme Court

18 S.W.2d 42

322 Mo. 765

Anton Schuler, Public Administrator, in Charge of Estate of Helen Frank Roth, v. St. Louis Can Company, Appellant

Supreme Court of Missouri

April 5, 1929

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

Affirmed (upon condition).

Banister Leonard, Sibley & McRoberts and Frank P. Aschemeyer for appellant.

(1) Defendant's motions to discharge the jury and declare a mistrial should have been sustained, since plaintiff's counsel's successful efforts to get insurance before the jury were in bad faith and highly prejudicial. Chambers v. Kennedy, 274 S.W. 726; Trent v. Printing Co., 141 Mo.App. 437; Burrows v. Likes, 180 Mo.App. 447; Kelley v. Sinn, 277 S.W. (Mo. App.) 360; Campbell v. Polk, 279 S.W. (Mo. App.) 719; Pettit v. Sales Co., 281 S.W. (Mo. App.) 973. (2) Defendant's offered instruction, lettered F, erroneously refused by the court, should have been given because: (a) In a case based upon the principle of res ipsa loquitur, the plaintiff must prove by a preponderance of the evidence all of of those facts the existence of which give rise to a presumption of negligence. Nelson v. Stone Co., 8 S.W.2d 918; Bond v. Ry. Co., 288 S.W. 777; Orcutt v. Building Co., 214 Mo. 35; Stofer v. Dunham, 208 S.W. (Mo. App.) 641. (b) The instruction is proper in form and is consistent with Instruction 1, given at the request of plaintiff. Cases supra. (3) Defendant's offered instruction lettered B, erroneously refused by the court, should have been given, because: (a) It was proper in form and within the issues made by the evidence. Hunter v. Candy Co., 307 Mo. 656; Brendel v. L. & P. Co., 252 S.W. 635; Spindler v. Am. Exp. Co., 232 S.W. 690; Merten v. Coffin Co., 232 S.W. (Mo. App.) 201; Clark v. Engineering Co., 263 S.W. (Mo. App.) 500; Ray v. Cement Co., 273 S.W. (Mo. App.) 1078. (b) It meets an issue submitted by Instruction 1, given at the request of plaintiff. (4) The verdict is excessive. Mahmet v. Radiator Co., 294 S.W. 1014; Rose v. Ry. Co., 315 Mo. 1181; Beuc v. Iron Co., 7 S.W.2d (Mo. App.) 438.

Mark D. eagleton, A. F. Gerritzen and Hensley, Allen & Marsalek for respondent.

(1) The court did not err in refusing to discharge the jury and to declare a mistrial. (a) No error was committed by the court in permitting plaintiff's counsel to ask the jury, upon their voir dire, whether or not any of them were connected with or held policies in "T.H. Mastin & Company," or whether they knew Simpson or Davis, adjusters for that company; it having been shown to the court that that company, by its agents and attorneys, had talked to the witnesses, and was actively engaged in contesting the suit. The court, on appeal, will not interfere with the discretion of the trial court in ruling upon matters of this nature. Cazzell v. Schofield (Mo.), 8 S.W.2d 591; Melican v. Const. Co. (Mo.), 278 S.W. 361; Wagner v. Const. Co. (Mo.), 220 S.W. 890; Kinney v. Ry. Co., 261 Mo. 97. (b) The trial court properly permitted plaintiff's counsel to show, upon cross-examination of Dr. J. B. Coryell, a witness for defendant, that he, for a number of years, had made his living at the behest of insurance companies, and that he was employed by practically all the companies doing business in the locality. The plaintiff was properly permitted to show these facts as affecting the witness's credibility. For the same purpose plaintiff was properly permitted to show that the expert witness, De Staebler, who testified for the defendant, inspected the machine at the request of Simpson. Jablonowski v. Mfg. Co., 312 Mo. 173; Snyder v. Mfg. Co., 284 Mo. 285. (2) The court did not err in refusing defendant's Instruction F. (a) The instruction, as offered, would have imposed upon plaintiff the burden of establishing, by a preponderance of the evidence, all the facts necessary to a verdict in her favor under the instructions. As to one of the facts, to-wit, the defendant's negligence, the burden of proof was upon the defendant. The instruction as offered was obviously incorrect, and was properly refused. Price v. Railway, 220 Mo. 463; Carlson v. Wells (Mo.), 276 S.W. 26; Simpson v. Ry. Co. (Mo.), 192 S.W. 739; Porter v. Ry. Co., 311 Mo. 72. (b) The instruction was also erroneous in that it stated that by the preponderance of the evidence the court intended no reference to the number of witnesses testifying concerning any fact or issue. Peppers v. Ry. Co., 316 Mo. 1104; Hite v. Railroad (Mo.), 225 S.W. 921; Trautmann v. Trautmann, 300 Mo. 314; Brown v. Foundry Co. (Mo. App.), 271 S.W. 543. (c) Error cannot be predicated upon the refusal of an instruction unless the instruction is correct in all respects. Barth v. Ry. Co., 142 Mo. 556; Robertson v. Biscuit Co. (Mo. App.), 285 S.W. 127; Higgins v. Pulley Co., 240 S.W. 252; Sneed v. Hardware Co. (Mo. App.), 242 S.W. 696. (d) Nor is it the duty of the court to separate the good from the bad. Fisher v. Transit Co., 198 Mo. 592; Chouteau v. Trust Co., 310 Mo. 684; Trustees v. Hoffman, 95 Mo.App. 488. (3) The court properly refused defendant's Instruction B. (a) Contributory negligence is an affirmative defense and must be pleaded in order to warrant submission of the issue to the jury. Benjamin v. Railroad, 245 Mo. 598; Lauck v. Reis, 310 Mo. 184. In the absence of a proper plea it is error to give an instruction which, in effect, submits contributory negligence, even though it is not so termed in the instruction. Collett v. Kuhlman, 243 Mo. 585; Keppler v. Wells (Mo.), 238 S.W. 425; Lyons v. Wells (Mo. App.), 270 S.W. 129. (b) There was no possible theory of the evidence upon which to base this instruction. It authorized the jury to find that the sole cause of plaintiff's injury was her act in placing her fingers between the dies -- an evident impossibility, since no injury could possibly have resulted from such act alone. The instruction would have confused and misled the jury, and could not properly have been given. Peppers v. Ry. Co., 316 Mo. 1104; Boland v. Railroad, 284 S.W. 141; Fisher v. Pullman Co., 212 Mo.App. 280; James v. Railroad, 107 Mo. 480. (c) Under defendant's Instructions 2 and 7, given, defendant was entitled to a verdict if it was not guilty of negligence. Instruction B, refused, required the same finding as a condition to a verdict for defendant, and, in addition, another finding which was improper and practically impossible. Its refusal was not harmful to defendant, but, on the contrary, was to defendant's advantage. Shinn v. Railroad, 248 Mo. 180; McCaffery v. Railroad, 192 Mo. 144; Schafstette v. Railroad, 175 Mo. 142; Johnson & Co. v. Ice Co., 143 Mo.App. 441; Secs. 1276, 1513, R. S. 1919. (4) The verdict was not excessive. (a) It was the peculiar province of the jury to determine the extent of plaintiff's injuries and the compensation she was entitled to recover. Hoover v. Ry. Co., 227 S.W. 79; Bright v. Sammons (Mo. App.), 214 S.W. 429; Maloney v. Ry. Co., 237 S.W. 516; Sacre v. Ry. Co., 260 S.W. 88; Fuller v. Ry. Co., 270 S.W. 140; 17 C. J. 1057, sec. 361. (b) In determining nature, extent and effect of the injuries, the evidence should be taken in its light most favorable to plaintiff Busby v. Tel. Co. (Mo.), 287 S.W. 434. (c) An appellate court will not interfere with the award of damages unless the amount "is so glaringly unsupported by the evidence as to shock the judicial sense of right, or compel a conviction that the verdict was the result of prejudice, passion or bias." Flach v. Ball, 240 S.W. 470; Ehman v. Himles, 243 S.W. 244; Washburn v. Print Co., 249 S.W. 711; Manley v. Wells (Mo.), 292 S.W. 67; Grott v. Shoe Co. (Mo.), 2 S.W.2d 785. (d) The award made by the jury is reasonable by comparison with verdicts in similar cases. Schroeder v. Wells (Mo.), 298 S.W. 806; Wagner v. Const. Co. (Mo.), 220 S.W. 890; Guidice v. Mfg. Co. (Mo.), 8 S.W.2d 964.

Henwood, C. Davis, C., concurs; Cooley, C., not sitting.

OPINION

HENWOOD

This suit was originally filed in the name of Helen Frank, an infant, by Louise Searls, her next friend, for personal injuries suffered by the said Helen Frank while employed by defendant. The trial resulted in a verdict and judgment for plaintiff in the sum of $ 15,000, and defendant appealed. Pending the appeal, plaintiff was married to one Emil Roth and, thereafter, died. By order of the Probate Court of the City of St. Louis, Anton Schuler, Public Administrator of that city, was authorized to take charge of plaintiff's estate, and, upon proper suggestion of these facts and proper motion, the cause was, by this court, revived in the name of said Public Administrator, who has entered his appearance as respondent herein.

Plaintiff's cause of action, as pleaded, rests upon the doctrine known as res ipsa loquitur. In her petition, it is alleged in substance, that she was employed in defendant's factory as operator of a certain machine or punch press; that the machine was operated by mechanical power and equipped with levers which the operator moved by hand for the purpose of stamping and forming sheets of metal; that, in the usual and ordinary operation of the machine, the upper die would descend upon the lower die, when the levers were pressed, and then ascend and remain stationary until the levers were pressed again; that on March 13, 1925, while she was working at the machine, and without any movement of the levers, the upper die descended in a sudden, unexpected and unusual manner, and crushed, lacerated and cut off parts of four fingers of her right hand; that she was not charged with the care and upkeep of the machine, and had no knowledge of the details of its construction and mechanism, nor of the cause of its unexpected and unusual operation which resulted in her injury; and that defendant possessed such knowledge and...