Stubblefield v. Federal Reserve Bank of St. Louis

• Citation: 204 S.W.2d 718,356 Mo. 1018
• Decision Date: 13 October 1947
• Docket Number: 40077
• Parties: Mrs. Myrtle A. Stubblefield, (Plaintiff) Appellant-Respondent, v. Federal Reserve Bank of St. Louis, a Corporation, (Defendant) Appellant, Fruin-Colnon Contracting Company, a Corporation, (Defendant) Appellant, St. Louis Contracting Company, a Corporation, (Defendant) Respondent, John A. Gunn, Mrs. Catherine E. Gunn and Mrs. Louise T. Merritt, Doing Business as Swift Roofing Company, (Defendant) Respondent
• Court: United States State Supreme Court of Missouri

204 S.W.2d 718

356 Mo. 1018

Mrs. Myrtle A. Stubblefield, (Plaintiff) Appellant-Respondent, v. Federal Reserve Bank of St. Louis, a Corporation, (Defendant) Appellant, Fruin-Colnon Contracting Company, a Corporation, (Defendant) Appellant, St. Louis Contracting Company, a Corporation, (Defendant) Respondent, John A. Gunn, Mrs. Catherine E. Gunn and Mrs. Louise T. Merritt, Doing Business as Swift Roofing Company, (Defendant) Respondent

No. 40077

Supreme Court of Missouri

October 13, 1947

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Affirmed and remanded.

Lee Fricke & Lee for plaintiff-appellant.

(1) The court erred in refusing instruction H for plaintiff, as if there was nothing to explain, because the fall of the wedge injuring plaintiff, warranted the inference of negligence against the owner, general contractor and both subcontractors doing work on the roof, with 5 or 6 of their workmen at the time seen looking down over the edge and watching the wedge drop and strike plaintiff, as the contracts between them assumed responsibility to protect the public upon the sidewalk from falling building materials. Gannon v. Laclede Gaslight Co., 145 Mo. 502; Semler v. Kansas City Pub. Serv. Co., 196 S.W.2d 197; Turner v. M., K. & T.R. Co., 346 Mo. 28, 142 S.W.2d 455; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Kelly v. Laclede R.E. & I. Co., 348 Mo. 407, 155 S.W.2d 90. (2) The instructions given were prejudicially erroneous as outside the evidence and pleadings, and misplaced the burden of the evidence and practically demanded a verdict for defendants. Other instances of error frequent in the instructions are listed in the argument. Lloyd v. Alton R. Co., 351 Mo. 1156, 175 S.W.2d 819; Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30; Oliver v. Morgan, 350 Mo. 591, 73 S.W.2d 993; Combs v. Ellsberry, 337 Mo. 491, 85 S.W.2d 135; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559; Quinn v. Van Raalte, 276 Mo. 71, 205 S.W. 59. (3) The court erred in refusing a new trial as to all defendants as all were under contract to do the work and furnish all materials. Rainwater v. Wallace, 351 Mo. 1044, 174 S.W.2d 835; Sheehan v. Terminal R. Assn. of St. Louis, 336 Mo. 709, 81 S.W.2d 305; Smith v. Gately Stores, 24 S.W.2d 200; Pennsylvania Steel Co. v. Wilkinson, 107 Md. 574, 69 A. 412, 16 L.R.A. (N.S.) 200.

J. D. Leritz for defendants-appellants Federal Reserve Bank of St. Louis and Fruin-Colnon Contracting Company.

(1) It was not error for the Court to read to the jury Instructions 3 and 6 offered respectively by the defendants Federal Reserve Bank of St. Louis and Fruin-Colnon Contracting Company. 1 Thompson, Work on Negligence, sec. 621, p. 568, sec. 689, p. 625; Salmon v. Kansas City, 145 S.W. 16; Carson v. Blodgett, 174 S.W. 447, 189 Mo.App. 120; McGrath v. St. Louis, 114 S.W. 611, 215 Mo. 191; Robins v. Chicago City, 71 U.S. 657; Press v. Penny, 145 S.W. 458. (2) It was not error for the Court to read to the jury Instructions Nos. 4 and 8 offered respectively by the defendants Federal Reserve Bank of St. Louis and Fruin-Colnon Contracting Company. Thompson, Work on Negligence, supra; Salmon v. K. C., supra; Carson v. Blodgett, supra; McGrath v. City of St. Louis, supra; Robins v. Chicago City, supra; Press v. Penny, supra; Palmer v. Hygrade Water & Soda Co., 151 S.W.2d 548; Sakowski v. Baird, 69 S.W.2d 649. (3) The verdict of the jury indicates that the jury did not follow instructions Nos. 3 and 6, and 4 and 8. The verdict indicates that the jury were not concerned with the liabilities of the several defendants. Any error in any of these instructions were of no consequence and did not justify setting aside the jury's verdict. 1 Raymond, Work on Instructions, sec. 212; Roberts v. Wilson, 33 S.W.2d 169; Gormon v. A.R. Jackson, Kansas City Show Case Works Co., 19 S.W.2d 559; State ex rel. v. Southern Securities Co., 60 S.W.2d 632

Carpenter & Cleary and Byron G. Carpenter for defendant-respondent St. Louis Contracting Company.

(1) Plaintiff was not entitled to invoke the aid of the res ipsa loquitur rule and the friendly inferences permissible thereunder, because, her petition counts solely upon the alleged commission of certain specific acts of negligence by defendants. State ex rel. Anderson v. Hostetter, 140 S.W.2d 21, 346 Mo. 249; Sanders v. City of Carthage, 51 S.W.2d 529, 330 Mo. 844; Kuhlman v. Water, Light & Transit Co., 271 S.W. 788, 307 Mo. 607; Munsey v. Eagle Packet Co., 50 S.W.2d 757. (2) Though it were to be conceded, arguendo, that one of the charges of negligence in plaintiff's petition was general in character, the fact that plaintiff followed that charge with allegations and proof of specific negligence precluded her from submitting her case under the res ipsa loquitur rule. Zasemowich v. American Manufacturing Co., 213 S.W. 799; State ex rel. City of Macon v. Trimble, 12 S.W.2d 727, 321 Mo. 671; Rice v. White et al., 239 S.W. 141; Hoeller v. St. Louis Public Service Co., 199 S.W.2d 7; Munsey v. Eagle Packet Co., 50 S.W.2d 754. (3) Her proof developed and supported some of the specific acts of negligence pleaded, and she was thus limited to recovery upon those specific grounds. Conduit v. Trenton Gas & Electric Co., 31 S.W.2d 21, 326 Mo. 133; Powell v. St. Joseph Railway Co., 336 Mo. 1016, 81 S.W.2d 957; Berry v. Kansas City Public Service Co., 121 S.W.2d 825, 343 Mo. 474; Lochmoeller v. St. Louis Public Service Co. (Mo. App.), 137 S.W.2d 625. (4) She requested only two directing instructions (Instruction No. 1, Transcript p. 146, and Instruction lettered "H," Transcript p. 152), both of which incorporated within their terms the certain and specific negligent acts complained of. (See authorities under Point (3) of Points and Authorities.) (5) Having thus cast her battle plan along the lines of specific negligence, she may not now be heard to invoke the aid of the so-called "presumptive negligence rule." Powell v. St. Joseph Railway, Light, Heat and Power Co., 336 Mo. 1016, 81 S.W.2d 957. (6) Plaintiff's requested instruction lettered "H" (Transcript p. 152) was properly refused because it was incorrect and erroneous in substance and in form, and it did not limit the issues to those raised by the pleadings and evidence. Though calling the jury's attention to the specific negligence of the defendants, consisting of failure to warn and failure to erect sidewalk guards, there was nowhere in the instruction a requirement that the jury find a causal connection between such alleged negligence and plaintiff's injury. Lackey v. United Railways Co., 231 S.W. 956, 288 Mo. 120; Connole v. East St. Louis and Suburban Ry. Co., 102 S.W.2d 581, 340 Mo. 690. (7) In its concluding lines, the instruction incorporated a roving commission, enabling the jury to return a verdict against defendants on any conceivable ground of negligence, whether or not the same had a basis in or relation to the pleadings or evidence. Hurley v. Mo. Pac. Transportation Co., 56 S.W.2d 620, 334 Mo. 537; Allen v. St. Louis Transit Co., 183 Mo. 411, 81 S.W. 1142. (8) It permitted the jury to find that the piece of wood which struck plaintiff came from the roof, that this respondent's servants had exclusive control of the wood and caused it to fall, although the evidence fell far short of establishing any of these facts. Thompson v. Boatmen's Nat. Bank, 148 S.W.2d 757, 347 Mo. 748. (9) It would have permitted the jury to arrive at a verdict for plaintiff and against this respondent through the process of pyramiding inference upon inference, a result never heretofore countenanced by th courts of this state. Morris v. E.I. Dupont and Co., 341 Mo. 821, 109 S.W.2d 1222; State ex rel. City of St. Charles v. Haid, 325 Mo. 107, 28 S.W.2d 97. (10) Plaintiff suffered no prejudice through the refusal of instruction lettered "H" because instruction No. 1 which was given by the court at plaintiff's request, submitted substantially the same charges to the jury and contained and submitted all of the issues which plaintiff was entitled to have passed upon by the jury. Rouchene v. Gamble Const. Co., 89 S.W.2d 58, 338 Mo. 123. (11) Instruction 10 was the only instruction given at the request of this respondent. It was a simple burden of proof instruction of approved form, and it was properly given under the law and the evidence. Wolfson v. Cohen, 55 S.W.2d 677.

Fordyce, White, Mayne, Williams & Hartman, E. C. Hartman and F. W. Schwarz for defendant-respondent John A. Gunn, Mrs. Catherine E. Gunn and Mrs. Louise T. Merritt, Doing Business as Swift Roofing Company.

Plaintiff failed to meet the burden of proof imposed upon her to show some responsibility of defendant Swift Roofing Company for the cause of plaintiff's injuries; plaintiff having failed to produce any evidence on this issue and her evidence, as a matter of fact, definitely and conclusively showing no responsibility on the part of said defendant the Court properly sustained this defendant's motion for a directed verdict. Luettecke v. St. Louis, 346 Mo. 168, 140 S.W.2d 45; Felber v. Union Electric L. & P. Co., 340 Mo. 201, 100 S.W.2d 494; Pietraschke v. Pollnow, 147 S.W.2d 167; State ex rel. Trading Post v. Shain, 342 Mo. 588, 116 S.W.2d 99.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

On September 5, 1945, Myrtle Stubblefield and her husband were walking on Broadway near Locust, in St. Louis when a wooden wedge, 8 7/8 inches long and weighing about three and one half ounces, fell approximately 100 feet from near the top of the Federal Reserve Bank Building and struck her on the head and shoulder. To recover for her resulting injuries Mrs. Stubblefield instituted this action for damages against the Federal Reserve Bank, the owner of the building, Fruin-Colnon...