Stiebert v. May Dept. Stores Co.
| Decision Date | 14 February 1949 |
| Docket Number | 40953 |
| Citation | 218 S.W.2d 113,358 Mo. 919 |
| Parties | John Stiebert, (Plaintiff) Respondent, v. May Department Stores Company, a Corporation, (Defendant) Appellant |
| Court | Missouri Supreme Court |
Appellant's Motion for Rehearing Denied in Per Curiam Filed March 14, 1949.
Appeal from Circuit Court of City of St. Louis; Hon. Robert L Aronson, Judge.
Affirmed.
Richard S. Bull for appellant; Carter, Bull, Garstang & McNulty of counsel.
(1) Plaintiff failed to make a submissible case for the jury under the doctrine of res ipsa loquitur, and the court therefore erred in submitting the case, because: There was no definite evidence that the piece of lumber that was alleged to have struck plaintiff fell or was thrown from any of the floors of the building under the control of the appellant. Thus an essential element requisite to the application of the doctrine was lacking. Cantley v. Missouri-K.-T.R Co., 353 Mo. 605, 183 S.W.2d 123; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Hart v. Emery Bird Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509; Belding v. St. Louis Pub. Serv. Co., 205 S.W.2d 866; Pronnecke v. Westliche Post Pub. Co., 220 Mo.App. 640, 291 S.W. 139; Pandjiris v. Oliver Cadillac Co., 98 S.W.2d 969, 339 Mo. 711; Carroll v. May Department Stores Co., 180 S.W.2d 793, 237 Mo.App. 983; Pape v. Aetna Casualty & Surety Co., 150 S.W.2d 569; Wolf v. American Tract Society, 164 N.Y. 30, 58 N.E. 31; Tallarico v. Autenreith, 347 Pa. 170, 31 A.2d 906; Wolk v. Pittsburgh Hotels Co., 284 Pa. 545, 131 A. 537; Michener v. Hutton, 258 P. 707; DeGlopper v. Nashville Ry. & Light Co., 123 Tenn. 633, 134 S.W. 609; 38 Am. Jur., pp. 995, 996, 1030; 45 C.J., pp. 1211, 1212-13, 1214. (2) Even if, by piling inference upon inference, it might be presumed that the offending lumber descended from the thirteenth floor, then leased by appellant, yet neither that instrumentality, producing the injury, nor the floor area, was shown to have been under the exclusive control of appellant. There was no evidence, actually, that appellant was using or controlling such an instrumentality at the time; the only lumber of this sort then in use was that employed by another, an independent contractor which with its own employees was engaged in work on the thirteenth floor of the building. For the activities of this independent contractor appellant could not be liable. Mattan v. Hoover Co., 350 Mo. 506, 166 S.W.2d 557; Skidmore v. Haggard, 110 S.W.2d 726; Barnes v. Real Silk Hosiery Mills, 341 Mo. 563, 108 S.W.2d 58; Bass v. Kansas City Journal Post Co., 347 Mo. 681, 148 S.W.2d 548; Dorsett v. Pevely Dairy Co., 124 S.W.2d 624; Heisey v. Tide Water Oil Co., 92 S.W.2d 922; Kruse v. Revelson, 115 Ohio St. 594, 155 N.E. 137; Carleton v. Foundry & Machine Products Co., 199 Mich. 148, 165 N.W. 816; Campbell v. Jones, 60 Wash. 265, 110 P. 1083. (3) There was prejudicial error in allowing plaintiff's attorney, in his closing argument to the jury, to read isolated excerpts from a deposition which, when read out of their context, distorted evidence on a material issue and tended to mislead. With a supporting ruling from the court, and with no opportunity for appellant to reply, this argument was such as to induce the jury to believe, contrary to the true meaning of the testimony, that appellant at the time of plaintiff's injury was using lumber of the kind asserted to have caused his injury. Callaway v. Fogel, 213 S.W.2d 405; Rules 3.27 and 4.22, Supreme Court of Missouri; 3 Am. Jur. 613; 53 Am. Jur. 391; 4 Jones' Commentaries on Evidence (2d Ed.), p. 3769; Hunter v. Johnson, 119 Mo.App. 487, 94 S.W. 311; Moore v. Washington Life & Accident Ins. Co., 58 S.W.2d 763; Robison v. Floesch Const. Co., 242 S.W. 421; 64 C.J., pp. 257, 268; McConkie v. Babcock, 101 Iowa 126, 70 N.W. 103.
Louis E. Miller, Miller & Landau and B. Sherman Landau for respondent.
(1) On this appeal from the verdict in favor of plaintiff, this court will disregard defendant's evidence, save as it may aid plaintiff's case, and must not only accept plaintiff's evidence as entirely true, but must further give plaintiff the benefit of every reasonable inference which the evidence tends to support. Pickett v. Cooper, 354 Mo. 910, 192 S.W.2d 412; Wright v. Osborn, 201 S.W.2d 935. (2) Plaintiff is not limited to the facts proven by direct evidence, but is entitled to the further benefit of all facts established by circumstantial evidence. Look v. French, 346 Mo. 972, 144 S.W.2d 128; Van Brock v. First Natl. Bank in St. Louis, 349 Mo. 425, 161 S.W.2d 258. (3) The res ipsa loquitur doctrine is peculiarly applicable to this case, relating to injuries caused by a falling object. Pandjiris v. Oliver Cadillac Co., 339 Mo. 711, 98 S.W.2d 969; Carroll v. May Department Stores Co., 237 Mo.App. 981, 180 S.W.2d 793. (4) Plaintiff was not required to establish by direct evidence the identity of the particular person responsible for the casualty. His burden of evidence was fulfilled when he adduced evidence proving that the timber came from the east half of the 13th floor, which was in defendant's custody and general control. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 92 A.L.R. 641; Carroll v. May Department Stores Co., 237 Mo.App. 981, 180 S.W.2d 793; Pandjiris v. Oliver Cadillac Co., 339 Mo. 711, 98 S.W.2d 969; Kelly v. Laclede Real Estate & Inv. Co., 348 Mo. 407, 155 S.W.2d 90, 138 A.L.R. 1065. (5) The presumption raised by the doctrine of res ipsa loquitur remained in the case to the end, and plaintiff's evidence sufficed to take the case to the jury notwithstanding that defendant's evidence may have tended to prove (as defendant urges) that Westlake Construction Company was an independent contractor. Pandjiris v. Oliver Cadillac Co., 339 Mo. 711, 98 S.W.2d 969. (6) If defendant had no written contract and its status with Westlake was controverted, the issue was one for determination by the jury. Klaber v. Fidelity Bldg. Co., 19 S.W.2d 758. (7) However, the uncontradicted evidence showed that defendant retained supreme control over Westlake's workmen, including the right to control the mode of doing the work and the means by which the result was to be accomplished. (8) The evidence showed that defendant's construction crews were working immediately adjacent to the Sixth Street wall whereas Westlake's workmen were 15 to 20 feet away from that wall. All of the proven factors in the case, considered in combination with each other, established negligence on the part of one or more members of defendant's crews as the more probable cause for the casualty. That made a case for the jury. Wills v. Berberich's Delivery Co., 345 Mo. 616, 134 S.W.2d 125; Guthrie v. St. Charles, 347 Mo. 1175, 152 S.W.2d 91. (9) If Westlake had been an independent contractor, such fact would not relieve the defendant of its responsibility to the public as the peculiar risk of injury to the public subjected defendant to liability for Westlake's negligence. The construction work was being carried on adjacent to windows high above a public sidewalk, heavily traversed by crowds in the large metropolis of St. Louis. Stubblefield v. Federal Reserve Bank of St. Louis, 356 Mo. 1018, 204 S.W.2d 718; Bloecher v. Duerbeck, 333 Mo. 359, 62 S.W.2d 553 Dagley v. Natl. Cloak & Suit Co., 224 Mo.App. 61, 22 S.W.2d 892; Morton v. Barr Dry Goods Co., 126 Mo.App. 377, 103 S.W. 588; Carroll v. May Department Stores Co., 237 Mo.App. 981, 180 S.W.2d 793; Pandjiris v. Oliver Cadillac Co., 339 Mo. 711, 98 S.W.2d 969; Cotton v. Ship-By-Truck Co., 337 Mo. 270, 85 S.W.2d 80. (10) Plaintiff's counsel was properly permitted to read excerpts from Safier's deposition, in his closing argument to the jury, where the entire deposition had been previously read in evidence to the jury and plaintiff's counsel was answering a line of argument initiated by defendant's counsel. The incident was properly ruled in accordance with the discretion of the trial court. Any contrary ruling would have been erroneous. Bradley v. City of Spickardsville, 90 Mo.App. 416; Robinson v. Floesch Construction Co., 242 S.W. 421; Gravemann v. Huncker, 71 S.W.2d 59.
The defendant appeals from a judgment for $ 20,000 damages for personal injuries recovered against it by the plaintiff-respondent in the circuit court of the City of St. Louis. Respondent's injuries were allegedly sustained through the falling of a piece of 2"x4" scantling of yellow pine lumber about 18 inches long with nails driven on the end, from one of the upper stories on the east side of the Railway Exchange Building in St. Louis about 1 p.m. on August 11, 1941. It struck him on the head and arm, he then being a pedestrian on the public sidewalk on Sixth Street bordering that side of the building, in the busy retail district of St. Louis. Respondent did not see the scantling fall, and three witnesses of the res gestae had either died or moved to an unknown address. The cause was tried under the res ipsa loquitur doctrine, and appellant's two points, or assignments of error, are that: (1) respondent failed to make a submissible case for the jury under that doctrine, because his evidence was too indefinite, and his injuries were inflicted by an independent contractor; (2) his counsel's closing argument to the jury was prejudicially erroneous.
There is no serious contention that the scantling did not fall from some of the upper stories of the building [though appellant's counsel speculates it might have fallen from a passing truck or a building across the street]. But the difficulties of the case arise from the fact that the Railway Exchange Building is a large structure 21 stories high perpendicularly flush with the abutting Sixth Street sidewalk, and occupied by a number of tenants on the east side. So the...
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