Stephens v. Kansas City Gas Company, 39394.

Decision Date07 January 1946
Docket NumberNo. 39394.,39394.
PartiesRICHARD STEPHENS v. KANSAS CITY GAS COMPANY, Appellant; RICHARD STEPHENS, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY.
CourtMissouri Supreme Court
191 S.W.2d 601
RICHARD STEPHENS
v.
KANSAS CITY GAS COMPANY, Appellant; RICHARD STEPHENS, Appellant,
v.
METROPOLITAN LIFE INSURANCE COMPANY.
No. 39394.
Supreme Court of Missouri.
Division One, January 7, 1946.

[191 S.W.2d 602]

Appeal from Jackson Circuit Court. — Hon. A.A. Ridge, Judge.

REVERSED AND REMANDED.

[191 S.W.2d 603]

Charles M. Miller for appellant Kansas City Gas Company.

(1) Plaintiff's third amended petition may have attempted to proceed upon the basis of "res ipsa loquitur" as to the Gas Company. Irrespective of whether or not the petition proceeded upon the "res ipsa" theory, the petition stated no cause of action against the Gas Company and the demurrer of the Gas Company should have been sustained. Kramer v. K.C.P. & L. Co., 311 Mo. 369, 279 S.W. 43; Carle v. Akin, 87 S.W. (2d) 406; Story v. People's Motor Bus Co., 327 Mo. 719, 37 S.W. (2d) 900; Robinson v. McVay, 44 S.W. (2d) 238; Coy v. Landers, 125 S.W. 789; Gaedis v. Ry. Co., 161 Mo. App. 225, 143 S.W. 565. (2) The first and third paragraphs of the petition disprove each other as to defendant Gas Company being in charge and control of the building in the basement of which the explosion occurred and destroys the allegation that the Gas Company was in complete charge and control of the building and basement. Gaedis v. Ry. Co., 161 Mo. App. 225, 143 S.W. 565. And under the petition there is no sufficient pleading of "res ipsa" as to the Gas Company. Story v. People's Motor Bus Co., 327 Mo. 719, 37 S.W. (2d) 900. (3) There is no charge of even general negligence under the petition as to the defendant Gas Company for the reason the back-handed reference to "negligence" is a mere conclusion of the pleader and there is no characterization of facts. (4) Paragraph 4 of plaintiff's petition, in charging that the negligence of the defendants concurred and combined with the negligence of the others in causing the explosion, discloses plaintiff knew of what the alleged "negligence" consisted. Otherwise he could not know that the alleged "negligence" combined. (5) The third paragraph of the petition did not allege that plaintiff received injuries as a result of the explosion. (6) Defendant Gas Company did not have to wait to urge its peremptory instruction offered at the close of the Gas Company's evidence until the defendant Insurance Company concluded its evidence, but if we be in error in this, then we urge the peremptory instruction requested by the Gas Company at the close of the Insurance Company's evidence should have been given, and in support of the different contentions asserted under this point, we cite the following cases: Hood v. Mathis and Sally, 21 Mo. 308; Gabelman v. Bolt, 336 Mo. 539, 80 S.W. (2d) 171; State ex rel. Nevins v. Hughes, 347 Mo. 968, 149 S.W. (2d) 836; Bowman v. Moore, 167 S.W. (2d) 675. (7) The allegations as to control in the first and third paragraphs of the petition eliminate any allegation as to control by the Gas Company because one disproves the other. Gaedis v. Ry. Co., 161 Mo. App. 225, 143 S.W. 565. (8) The "res ipsa" doctrine cannot be applied where there are two defendants, and either may be responsible for the alleged injuries caused. Story v. People's Motor Bus Co., 327 Mo. 719, 37 S.W. (2d) 900. (9) The "res ipsa" doctrine is not applicable to this case for the reason the building, basement and gas pipes in the basement, were not under the exclusive control of the defendant Gas Company and there is no allegation in the petition that they were. McCloskey v. Koplar, 329 Mo. 527, 46 S.W. (2d) 557; Nomath Hotel Co. v. K.C. Gas Co., 204 Mo. App. 214, 223 S.W. 975; Niswander v. K.C. Gas Co., 181 S.W. (2d) 165; Gerhart v. Son. Calif. Gas Co., 132 Pac. (2d) 874; St. Marys Gas Co. v. Brodbeck, 114 Ohio St. 423, 151 N.E. 323; Sleater v. Thompson Co., 173 S.W. (2d) 591; Tayer v. York Ice Co., 342 Mo. 912, 119 S.W. (2d) 240. (10) With the application of the doctrine of "res ipsa" out of the case as not applicable, even if the petition be held to state sufficiently the "res ipsa" doctrine, the petition stated no cause of action against the defendant Gas Company. It did not state even general negligence. There was nothing to recover on. Brandt v. Farmers Bank of Chariton County, 177 S.W. (2d) 667, 670, and cases therein cited in the opinion of Judge Bland on motion for rehearing. Brandt v. Farmers Bank of Chariton County, 182 S.W. 281. (11) The evidence did not make out a case against the defendant Gas Company for submission to the jury. St. Marys Gas Co. v. Brodbeck, 114 Ohio St. 423, 151 N.E. 323; Nomath Hotel v. K.C. Gas Co., 204 Mo. App. 214, 223 S.W. 975; Fritz v. Railroad, 243 Mo. 62, 148 S.W. 74; Fuch v. St. Louis, 167 Mo. 620, 67 S.W. 610; Fritz v. Mfg. Ry. Co., 124 S.W. 603; Riggs v. St. Ry. Co., 216 Mo. 304, 115 S.W. 969. (12) Plaintiff relies upon opinion evidence of an expert, which, standing alone, is not sufficient in this case to make a submissible case. Fritz v. Mfg. Ry. Co., 124 S.W. (2d) 603. (13) The opinion of the expert called by plaintiff, was predicated upon speculation and conjecture, which is not sufficient or competent. (14) The necessary facts to support an inference, must be proven and cannot be permitted to rest upon guesswork, conjecture or speculation and the case must fail where the inference is inconsistent with a proven fact, and factual issues must be established by legitimate proof, which factual inferences must not be inconsistent. Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W. (2d) 31; Lappin v. Prebe, 345 Mo. 68, 131 S.W. (2d) 511. (15) An inference if permissible, must point to the liability of the defendant to the exclusion of other causes, and an inference cannot be predicated upon an inference, and such, we urge, applies to an expert witness. Pape v. Aetna Cas. Co., 150 S.W. (2d) 569. (16) Where a thing may have resulted from one of two causes for one of which and not the other, the defendant would be liable, plaintiff must show with reasonable certainty that the cause for which defendant would be liable was a proximate cause of the injury. Warner v. Railroad, 178 Mo. 175, 77 S.W. 67; Hayes v. Kresge Co., 100 S.W. (2d) 325. (17) Where two inferences are contradictory respecting ultimate facts, such constitutes a failure of proof thereof, as it leaves it in the field of conjecture. Speakman v. Kurn, 115 S.W. (2d) 185. (18) The trial court erred in admitting, over the objection of defendant Gas Company, conclusions and opinion of witness. Benberg, as an expert. Southern Iron & Equip. Co. v. Smith, 257 Mo. 226, 165 S.W. 804; Kimmie v. Railroad, 334 Mo. 596, 66 S.W. (2d) 561; Vitale v. Duerbeck, 338 Mo. 556, 92 S.W. (2d) 691; Miller v. Ins. Co., 61 S.W. (2d) 205, 207 (involved members of Fire Dept.). (19) The trial court erred in refusing to give defendant Gas Company's Instruction "P" to the effect that the depth the 4 inch gas main was laid under the surface of the street was withdrawn from the jury as an element of negligence against defendant, Kansas City Gas Company, for reasons as follows: While plaintiff did not submit the case on alleged negligence as to the depth of the main, the admitting of the evidence on the alleged issue, over the objection of the Gas Company, made it prejudicial to refuse this instruction. Crone v. United Rys. Co., 236 S.W. 654. (20) The trial court erred in giving defendant Insurance Company's Instruction G-M, because it was prejudicial to the defendant Gas Company, in giving undue prominence and emphasizing the same before the jury. (21) The trial court erred in giving plaintiff's Instruction 3, declaring that the Gas Company was required to exercise the "highest degree" of care. It was only required to exercise ordinary care, commensurate with the handling of natural gas, and such is the law in Missouri. Nomath Hotel Co. v. K.C. Gas Co., 204 Mo. App. 214, 223 S.W. 975; Brauer v. St. Louis Gas Co., 238 S.W. 519. (22) The Missouri rule, as above asserted by us is the rule in Calif., D.C., Ga., Ill., Ind., Kan., La., Md., Mass., Minn., N.J., N.Y., Okla., Ore., Penn., R.I., Va., W. Va., Wis., England and Canada. See 25 A.L.R. 262 (1922), for a long note as to the degree of care in different states. (23) The highest degree of care means that there can be no care higher than the highest. Ilges v. St. Louis Transit Co., 102 Mo. App. 522, 77 S.W. 93.

James R. Sullivan and Walter A. Raymond for respondent Richard Stephens.

(1) Defendant Gas Company's demurrer to plaintiff's third amended petition was properly overruled and by pleading over said defendant waived any objection to the petition. Grindstaff v. J. Goldberg & Sons Structural S. Co., 328 Mo. 72, 40 S.W. (2d) 702; Niehaus v. Joseph Greenspon's Pipe Corp., 164 S.W. (2d) 180; Zichler v. St. Louis Pub. Serv. Co., 332 Mo. 902, 59 S.W. (2d) 654; State ex inf. Attorney General v. Arkansas Lbr. Co., 260 Mo. 212, 169 S.W. 145; Taylor v. Cleveland, C.C. & St. L. Ry. Co., 333 Mo. 650, 63 S.W. (2d) 69; Secs. 953, 969, 1265, R.S. 1939; Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W. (2d) 21; Watts v. Moussette, 337 Mo. 533, 85 S.W. (2d) 487; Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W. (2d) 21; Kelly v. Laclede Real Estate & Inv. Co., 348 Mo. 407, 155 S.W. (2d) 90; Panjiris v. Oliver Cadillac Co., 339 Mo. 711, 98 S.W. (2d) 969; Baugher v. Gamble Const. Co., 324 Mo. 1233, 26 S.W. (2d) 946; Stottle v. Chicago, R.I. & P. Ry. Co., 321 Mo. 1190, 18 S.W. (2d) 433; Taylor v. Cleveland, C.C. & St. L. Ry. Co., 333 Mo. 650, 63 S.W. (2d) 69; State ex rel. Anderson v. Hostetter, 346 Mo. 249, 140 S.W. (2d) 21. (2) The peremptory instructions were properly refused as a submissible case was made against defendant Gas Company. James v. Bailey Reynolds Chandelier Co., 325 Mo. 1054, 30 S.W. (2d) 118; Finley v. St. Louis-S.F. Ry. Co., 349 Mo. 330, 160 S.W. (2d) 735; Baker v. Chicago, B. & Q.R. Co., 327 Mo. 986, 39 S.W. (2d) 535; Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W. (2d) 311; Boehm v...

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