Vitale v. Duerbeck

• Decision Date: 12 June 1933
• Docket Number: 31175
• Citation: 62 S.W.2d 559,332 Mo. 1184
• Parties: Olive Vitale v. Mary Duerbeck, Executrix of William Duerbeck, Appellant
• Court: Missouri Supreme Court

62 S.W.2d 559

332 Mo. 1184

Olive Vitale v. Mary Duerbeck, Executrix of William Duerbeck, Appellant

No. 31175

Supreme Court of Missouri

June 12, 1933

Appeal from Circuit Court of City of St. Louis; Hon Moses Hartmann, Judge.

Affirmed.

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

(1) The verdict of the jury was according to the law and the evidence and the weight of the evidence. The verdict was for the right party and the court erred in sustaining plaintiff's motion for a new trial on the seventh ground of plaintiff's motion for a new trial. (a) The seventh ground of plaintiff's motion for a new trial is not sufficiently specific to raise the point plaintiff attempted to raise. Natl. Bond & Investment Co. v. Hodiamont Bank, 29 S.W.2d 205; Burns v. School District of Des Loge, 50 S.W.2d 679; De Maria & Janssen v Baum, 52 S.W.2d 421; State ex rel. v. Trimble, 39 S.W.2d 375; Bond v. Williams, 214 S.W. 202. (b) The evidence is conclusive and undisputed that Murphy and Tecklin were independent contractors, and in any event defendant's demurrer should have been sustained, as there could be no liability on the part of defendant for their acts. If the verdict had been against defendant instead of in his favor, such verdict would not be allowed to stand. Lyons v. Corder, 162 S.W. 606, 253 Mo. 561; Timmerman v. St. L. Architectural Iron Co., 1 S.W.2d 795; Gayle v. Mo. Car Foundry Co., 76 S.W. 992; Mattocks v. Emerson Drug Co., 33 S.W.2d 144; Baker v. Scott County Milling Co., 20 S.W.2d 494. (c) The record shows that there is no substantial evidence against the verdict of the jury, and, on the contrary, if the verdict had been against the defendant instead of in his favor, such verdict could not have been allowed to stand, as there would have been no substantial evidence to support it hence the action of the trial court in granting a new trial to plaintiff was unjudicial and exceeded his discretionary powers. Skirvin v. McKamey, 237 S.W. 858; Lyons v. Corder, 162 S.W. 606, 612; Sexton v. Met. Ry. Co., 149 S.W. 25; Barr v. Nafziger Baking Co., 41 S.W.2d 564; Cullison v. Wells, 297 S.W. 373; Christeson v. Prewett, 11 S.W.2d 1112; Mockowik v. Railroad, 196 Mo. 568; Moore v. Railway Co., 176 Mo. 545; Fritz v. Railroad, 243 Mo. 69. (2) The trial court did not err in giving and reading to the jury the instructions offered by the defendant, which instructions were proper and correct declarations of law. The trial court erred in sustaining plaintiff's motion for a new trial on ground 4, and his action amounted to an abuse of his discretion and was unjudicial. Mockowik v. Railroad, 196 Mo. 568; Moore v. Railway Co., 176 Mo. 545; Fritz v. Railroad, 243 Mo. 69. If Murphy and Tecklin were independent contractors, defendant is not liable for their negligent acts, if any. Gayle v. Missouri Car Foundry Co., 77 S.W. 987; Schroer v. Brooks, 224 S.W. 53; Timmermann v. St. Louis Iron Co., 1 S.W.2d 795; Mattocks v. Emerson Drug Co., 33 S.W.2d 144; Galber v. Grossberg, 25 S.W.2d 97; Denny v. Brown, 193 S.W. 556; O'Hara v. Laclede Gaslight Co., 148 S.W. 887; Baker v. Scott County Milling Co., 20 S.W.2d 501; Galber v. Grossberg, 25 S.W.2d 97.

Kratky, Spencer, Soffer & Nessenfeld for respondent.

(1) The court properly sustained plaintiff's motion for a new trial on the ground that the verdict was against the weight of the evidence. (a) The seventh ground of plaintiff's motion for a new trial was sufficiently specific to raise the point in the trial court that the verdict was against the weight of the evidence. Higgins et al. v. Higgins et al., 243 Mo. 164, 147 S.W. 962; Diamond v. McVey, 239 S.W. 562; Riche v. City of St. Joseph et al., 32 S.W.2d 578. (b) Defendant was liable for the acts of Murphy and Tecklin. (2) Where the contract of employment is oral, as in this case, and there are facts and circumstances from which different inferences may legitimately be drawn concerning the obligations under the contract, it is for the jury to determine whether the relationship of independent contractor exists. Thomassen v. West St. Louis Water & Light Co., 251 S.W. 453; Same case, 312 Mo. 150, 278 S.W. 979; Hoelker v. American Press Co., 317 Mo. 64, 296 S.W. 1008. (3) Where the work is subject to unusual danger unless precautions are taken, liability cannot be evaded by employing an independent contractor. Mallory v. Louisiana Pure Ice & Supply Co., 6 S.W.2d 617. (4) Defendant failed to exercise ordinary care in selecting Murphy and Tecklin, who performed the work. Mullich v. Brocker, 119 Mo.App. 332, 97 S.W. 549. (5) The doctrine relieving one of liability for the acts of an independent contractor does not apply to a case such as the instant one, where the landlord undertakes to make repairs or improvements. Blumenthal v. Prescott, 75 N.Y.S. 713; Peerless Manufacturing Co. v. Bagley, 126 Mich. 225, 85 N.W. 568; Wertheimer v. Saunders, 95 Wis. 573, 70 N.W. 824; Bancroft v. Godwin, 41 Wash. 253, 83 P. 189; Pittsfield Cottonware Mfg. Co. v. Pittsfield Shoe Co., 71 N.H. 522, 53 A. 807; R. C. H. Covington Co. v. Masonic Temple Co., 176 Ky. 729, 197 S.W. 420; Dalkowitz v. Schreiner, 110 S.W. 564; Boyle v. Franek, 118 N.W. 468; Medley v. Trenton Investment Co., 236 N.W. 713; Rosenberg v. Zeitchik, 101 N.Y.S. 591; Eberson v. Continental Investment Co., 118 Mo.App. 67, 93 S.W. 297; Vollrath v. Stevens, 199 Mo.App. 5, 202 S.W. 283. (a) There was substantial evidence upon which a verdict for plaintiff could be based. In this state of facts, an appellate court will not interfere with the discretion of the trial court in granting a new trial on the ground the verdict is against the weight of the evidence. Hunt v. Gus Gillerman Iron & Metal Co., 327 Mo. 887, 39 S.W.2d 369; Guthrie v. Gillespie, 319 Mo. 1137, 6 S.W.2d 886; Bowers v. Kansas City Public Service Co., 328 Mo. 770, 41 S.W.2d 810. (b) The evidence in support of plaintiff's case is reasonable and consonant with physical laws. Appellate courts will not reject testimony as manifestly impossible and opposed to the laws of nature except when no other conclusion by reasonable minds is possible. Thompson v. City of Lamar, 17 S.W.2d 960; Doyle v. St. Louis Merchants' Bridge Term. Ry. Co., 326 Mo. 425, 31 S.W.2d 1012; Miller v. Collins, 328 Mo. 313, 40 S.W.2d 1062; State ex rel. St. Charles v. Haid, 325 Mo. 107, 28 S.W.2d 97.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

This is a companion case to that of Helen Bloecher v. Estate of William Duerbeck, 333 Mo. , 62 S.W.2d 553, argued and submitted to this court at a previous term, but the opinion in which is handed down concurrently with this case. This suit is for personal injuries to the wife of Sam Vitale, tenant of William Duerbeck, growing out of the same explosion of an Arcola hot water heater placed in the rented premises by the landlord, William Duerbeck, the facts as to which are set forth more fully in the Helen Bloecher case, to which reference is here made, and same need not be repeated here. It will suffice to say here that the conceded explosion of this hot water Arcola heater resulted in very severe injuries to this plaintiff, as well as to her sister, Helen Bloecher, plaintiff in the other case. The pleadings and issues are much the same in both cases. In each case the plaintiff seeks to recover damages for personal injuries on account of the explosion of the heater caused by the defective manner in which it was installed, constituting negligence on defendant's part. The case was brought and tried against William Duerbeck, now deceased, and we will treat him as the defendant.

In each of the cases the question of defendant's negligence in that the installation and construction of the heating plant was defective narrowed down to the disputed question of whether the air vent in the hot water pipe was placed at the highest point in the hot water system, and whether the safety valve was placed in such an exposed place that it was likely to and did freeze on this occasion. It was shown by all the evidence and practically conceded that in heating with hot water pipes and radiators the hot water pipe should ascend from the heater to the highest point in the circulatory system, where there should be an air vent or escape to prevent an air pocket forming at that point in the pipe, which is sure to happen unless thus prevented. The hot water pipe should then constantly descend to and through the radiators with a return pipe to the heater. Air will accumulate at the highest point in the circulatory system and unless drawn off at that point will form an air pocket which will effectually obstruct the water circulation at that point. When this happens the water in the heater becomes overheated, turns to steam, and may cause an explosion.

One of the grounds of negligence claimed in this case is that the air vent or escape was not placed at the highest point in the hot water system. It is also conceded that a hot water system like the one in question should have a safety or steam escape valve installed somewhere along the return line, so constructed that it will automatically open in case of excessive pressure and allow the steam to escape. Such a valve, called a Mueller valve, was so installed on this line but plaintiff contends that the place of installation was in an open and exposed place in the basement so that in extreme cold weather it was likely to and on this occasion did freeze up so that it did not function. It should be here said that the plaintiff's claim is not that the return pipe itself froze so that ice therein obstructed the return flow of the water, but rather that ice formed in the seat of the safety valve connected with such pipe and thereby prevented the valve opening and thus reducing the excessive steam pressure caused by the obstructed...