State ex rel. Stein v. Becker

• Decision Date: 03 February 1934
• Citation: 67 S.W.2d 755,334 Mo. 749
• Parties: State ex rel. David Stein, an Individual, One of Copartners Doing Business as Stein Brothers, Relator, v. William Dee Becker, Edward J. McCullen and Joseph Kane, Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

67 S.W.2d 755

334 Mo. 749

State ex rel. David Stein, an Individual, One of Copartners Doing Business as Stein Brothers, Relator, v. William Dee Becker, Edward J. McCullen and Joseph Kane, Judges of the St. Louis Court of Appeals

Supreme Court of Missouri

February 3, 1934

Writ quashed.

Wayne Ely and Tom Ely, Jr., for relator.

(1) The opinion and decision of the St. Louis Court of Appeals is in direct conflict with the controlling decisions of this court in this, to-wit: That the said St. Louis Court of Appeals held that Instruction 3 was correct and in accordance with the res ipsa loquitur doctrine, although said Instruction 3 told the jury that the law presumes that the falling of the shelving and the injury to plaintiff were caused by some negligence of the defendant, and the duty is upon the defendant to show to their reasonable satisfaction that defendant could have prevented the falling of the shelves with reasonable care; the true rule of law being, as pronounced by this court, that the law will permit the jury to presume or infer negligence. And the true rule is that the burden of proof remains on the plaintiff. Zichler v. St Louis Pub. Serv. Co., 59 S.W.2d 656; Steffen v Southwestern Bell Tel. Co., 56 S.W.2d 51; McCloskey v. Koplar, 46 S.W.2d 563; McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872. (2) The opinion and decision of the St. Louis Court of Appeals is in conflict with the controlling decisions of this court, in that it holds that the testimony relative to plaintiff's injuries was sufficient to warrant the jury in finding that plaintiff was permanently injured; whereas, the controlling decisions of this court hold that the rule is: "To recover damages for permanent injury, the permanency of the injury must be shown with reasonable certainty, and while absolute certainty is not required, mere conjecture or likelihood, or even a probability, of such injury will not sustain the allowance of damages therefor." Plank v. R. J. Brown Petroleum Co., 61 S.W.2d 334; Lebrecht v. United Rys Co., 237 S.W. 114. And this honorable court has the right and duty to consider whether, in holding as it did, the St. Louis Court of Appeals, upon the facts stated in the opinion, contravened the controlling decisions of this court. State ex rel. v. Cox, 276 S.W. 871, 310 Mo. 367.

Everett J. Hulverson and Staunton E. Boudreau for respondents.

(1) The opinion of the St. Louis Court of Appeals in holding that plaintiff, respondent there, made a case for submission to the jury under the res ipsa loquitur rule is not in conflict with the opinions of this court and relied upon by relator. McClosky v. Koplar, 46 S.W.2d 563. (a) The sole question presented by appellant, relator here, to the St. Louis Court of Appeals for decision through his (appellant's) assignments of error, points and authorities, and written argument, was whether or not plaintiff had by her evidence made a case for the jury under the res ipsa loquitur rule. Respondents held that plaintiff had done so and that was all that they held. Relator makes no complaint here of the correctness of that holding. (2) The opinion of the St. Louis Court of Appeals is not in conflict with the opinion of this court as alleged by relator in holding that there was sufficient evidence to warrant the inclusion in plaintiff's Instruction 6 of authority to the jury to consider the permanency, if any, of plaintiff's injury in arriving at their verdict. Plank v. R. J. Brown Petroleum Co., 61 S.W.2d 328.

Gantt, C. J. All concur, Ellison, J., in result only; except Hays, J., absent.

OPINION

GANTT

Relator seeks to have quashed the opinion of the St Louis Court of Appeals in Ernestine Perry, by next friend, v. Stein, 63 S.W.2d 296. It appears from the opinion as follows:

Defendant Stein was a merchant. Plaintiff as his customer was standing at the counter on the west side of his storeroom. While so standing the shelving fell from the side of the building and against the counter, which caused canned goods to be thrown from the shelves and against plaintiff, thereby injuring her. The action was for personal injuries. General negligence was pleaded and recovery sought on the theory of res ipsa loquitur. At the close of the evidence for plaintiff, the court sustained a demurrer to all defendants except David Stein. Defendant offered no evidence. Judgment went against Stein for $ 2100, and he appealed.

In the trial court and in the Court of Appeals defendant Stein challenged an instruction as follows:

"The court instructs the jury that if you find and believe from the evidence that on the occasion in question plaintiff was an invitee on the premises mentioned in evidence, then the court instructs you that it was the due obligation and duty of defendant to plaintiff to use ordinary care to keep and maintain said premises in a reasonably safe condition and a failure of defendant to use such ordinary care would constitute negligence and defendant would be responsible for all injuries resulting to plaintiff, if any, from such negligence, if any; and if you further find from the evidence that plaintiff was in a position of danger, if you so find in the event the said shelving and contents thereof in said store should fall, and if you further find that said shelving did, in fact, fall and the contents thereof did strike and injure the plaintiff, if you find she was injured, then the law presumes that said falling of said shelving, if it did fall, and the injury to the plaintiff, if any, were caused by some negligence of defendant, and the duty is upon the defendant to bring forward evidence to show to your reasonable satisfaction that the defendant could not have prevented the falling of said shelving by the exercise of ordinary care, and unless you find that the falling of...