Vitale v. Duerbeck
| Decision Date | 10 March 1936 |
| Docket Number | 34324 |
| Parties | Olive Vitale v. Mary Duerbeck, Executrix of the Estate of William Duerbeck, Appellant |
| Court | Missouri Supreme Court |
Rehearing Granted, Reported at 338 Mo. 556 at 569.
Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.
Affirmed.
Wayne Ely and Tom Ely, Jr., for appellant.
(1) The court erred in overruling defendant's demurrer to the evidence both at the close of the plaintiff's case and at the close of the whole case. (a) To prove the facts necessary to a recovery by plaintiff she relied solely on the testimony of Sam Vitale, and his testimony is so contradictory and conflicting, one version thereof tending to disprove the other, and since there was no explanation of the contradictions, and no other fact or circumstance in the case tending to show which version of the case was true, no case was made for the jury. Furthermore, Sam Vitale admitted that he had willfully withheld the truth with respect to material matters in the case, that he had testified falsely about material facts, that he had knowingly concealed the fact that Eddie Utterbach was in his shop at the time of the explosion and that he also knowingly concealed the fact that Utterbach had brought three buckets of coal from the basement a few minutes before the explosion. Adelsberger v. Sheehy, 59 S.W.2d 647; United States v. Kiles, 70 F.2d 880; State ex rel. Mochnick v. Andrioli, 249 N.W. 379; Goater v. Klotz, 124 A. 83. (b) Plaintiff relied entirely upon the opinion testimony of Frank Carter and Harry A. Geauque to prove that the explosion occurred within the water sections of the furnace. Each of these witnesses retracted and denied his own positive statements; speculated conjectured and guessed, and gave testimony of such a conflicting and contradictory character as to render a finding of facts on the opinions expressed by them nothing but a guess. Their testimony furnished no basis for a judgment, and there was no other testimony in the case tending to prove which of the opinions of said witnesses were true, and the case should not have been submitted to the jury. Adelsberger v. Sheehy, 59 S.W.2d 647; United States v. Kiles, 70 F.2d 880; State ex rel. Mochnick v. Andrioli, 249 N.W. 379; Goater v Klotz, 124 A. 83; Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 33, 53 S.Ct. 391; Polokoff v. Sanell, 52 S.W.2d 443. (c) In determining whether a man was negligent under given circumstances the courts will determine what an ordinary, reasonable and prudent person would have done under those circumstances, and will require a defendant who is charged with exercise of reasonable care to do only what the average man would have done. Measured by this standard, plaintiff's evidence fails to show that the defendant in this case was guilty of any negligence, as he did only what the average man would have done under the same or similar circumstances. American Brewing Co. v. Talbot, 141 Mo. 674, 42 S.W. 679; Newhouse v. St. Louis Bank Building & Equipment Co., 33 S.W.2d 932; Jones v. Ry. Co., 63 S.W.2d 94; Wecker v. Grafeman-McIntosh Ice Cream Co., 31 S.W.2d 974. (d) Plaintiff did not prove that the alleged negligence of defendant was the proximate cause of the explosion, or that there was any causal connection between defendant's alleged negligence and the explosion. The burden was on plaintiff to furnish such evidence, and in failing to furnish it plaintiff failed in her proof. Kane v. Ry. Co., 157 S.W. 644; Pierce Oil Corp. v. City of Hope, 248 U.S. 498, 39 S.Ct. 172; Beebe v. St. Louis Transit Co., 206 Mo. 419, 103 S.W. 1019; Clark v. Granby Mining & Smelting Co., 183 S.W. 1099; Coin v. Talge Lounge Co., 222 Mo. 488, 121 S.W. 1; Coble v. Ry. Co., 38 S.W.2d 1031; Byerly v. Consolidated L. P. & Ice Co., 130 Mo.App. 593, 109 S.W. 1065. (e) Defendant had no knowledge, and could have had no knowledge, of the alleged defective condition of the heating system, and could not reasonably have anticipated that the explosion would occur. Therefore he was not negligent and was not liable. Cash v. Sonken-Galamba Co., 17 S.W.2d 927; Korach v. Loeffel, 168 Mo.App. 414, 151 S.W. 790; Mahnken v. Gillespie, 43 S.W.2d 797; Casey v. Hoover, 114 Mo.App. 47, 89 S.W. 330; Berg v. Otis Elevator Co., 231 P. 832; Huset v. Threshing Machine Co., 120 F. 865; Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo. 605, 19 S.W. 630; 45 Cyc., pp. 884, 885. (f) Plaintiff's theory of this explosion was demonstrated to be false by common knowledge of scientific facts, and her theory was impossible as a matter of mathematical computation. Established physical facts and common observation conflict with and disprove the testimony of plaintiff's witnesses, and disprove her theory of the case. Sexton v. Met. St. Ry. Co., 245 Mo. 254, 149 S.W. 25; Weltmer v. Bishop, 171 Mo. 110, 71 S.W. 167; Barr v. Nafziger Baking Co., 41 S.W.2d 559; Voorhees v. Ry. Co., 30 S.W.2d 22; Cardindale v. Kemp, 309 Mo. 241, 274 S.W. 437. (2) The court erred in ruling that defendant could not avail herself of the defense that the work and installation was performed by independent contractors. (a) The undisputed evidence shows that the installation was done by independent contractors, and although it shows that defendant paid the contractors for installing the heating system, it is also established that if there was any negligence in the installation it was the negligence of the contractors, and such negligence, if any, and the defects in the system, if any, were of such nature that a reasonably careful inspection would not have disclosed the defects to the defendant, and therefore defendant was not negligent and should not be held liable for the negligence of the independent contractors. Casey v. Hoover, 114 Mo.App. 47, 89 S.W. 330; Berg v. Otis Elevator Co., 231 P. 832; Huset v. Threshing Machine Co., 120 F. 865; Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo. 605, 19 S.W. 630; 45 Cyc. 884. (b) The defendant was not negligent in failing to inspect the heating system after it was installed. The system was in Vitale's house. Neither Mr. nor Mrs. Vitale made any complaint to defendant, and the premises being under the control of Mr. and Mrs. Vitale, the defendant landlord had no right to enter the premises even to make inspection. Korach v. Loeffel, 168 Mo.App. 414, 151 S.W. 790; Mahnken v. Gillespie, 43 S.W.2d 797. (3) The court erred in giving Instruction 1 on behalf of plaintiff. (a) Instruction 1 was broader than both the pleadings and the evidence. It was broader than the evidence in that it permitted the jury to find (1) that the circulation of the water in the system was obstructed by an accumulation of air in the system; (2) that the safety relief valve froze; (3) that air and steam pressure thereof accumulated in the system and exploded the boiler. There was no evidence of probative value that any of said facts were true. (b) Instruction 1 was broader than the pleadings in that it permitted the jury to find that the safety relief valve "was installed in a place where it was likely to freeze and thereby become inoperative," when there was no such complaint in the pleadings. State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Kitchen v. Schlueter Mfg. Co., 20 S.W.2d 676; Gandy v. Railroad Co., 44 S.W.2d 634; Mitchell v. Ry. Co., 69 S.W.2d 286; Gundelach v. Compagnie Generalle Transatlantique, 41 S.W.2d 1. (c) Instruction 1 assumes that failure on the part of defendant to comply with the facts hypothesized in the instruction was actionable negligence, and assumes that if air and steam accumulated in the system, or if the Mueller relief valve froze, or if any internal pressure was created within the system such things happened as a result of defendant's negligence. Mahaney v. K. C., Clay County & St. Joseph Auto Transit Co., 46 S.W.2d 821; Gleason v. Texas County, 46 S.W.2d 548. (4) The court erred in refusing defendant's Instruction B, which instruction correctly defined an independent contractor. Casey v. Hoover, 114 Mo.App. 47, 89 S.W. 330; Berg v. Otis Elevator Co., 231 P. 832; Huset v. Case Threshing Machine Co., 120 F. 865; Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo. 605, 19 S.W. 630; 45 Cyc. 884. (5) The court erred in refusing defendant's Instruction C, which instruction properly told the jury that unless they found that the installation was performed by the agents or servants of the defendant, and that the system was installed in a negligent or unsafe manner, and that such negligent installation, if any, directly caused or contributed to cause the explosion, the verdict should be for the defendant. Gayle v. Mo. Car & Foundry Co., 177 Mo. 427, 76 S.W. 987; Casey v. Hoover, 114 Mo.App. 47, 89 S.W. 330; Berg v. Otis Elevator Co., 231 P. 832; Huset v. Threshing Machine Co., 120 F. 865; Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo. 605, 19 S.W. 63; Timmerman v. St. Louis Architectural Iron Co., 1 S.W.2d 791. (6) The court erred in refusing defendant's Instruction D. Instruction D peremptorily told the jury that if they found that the heating system was installed by an independent contractor, and not by defendant's agent or servant, the verdict should be for defendant. Under the evidence in this case defendant was entitled to this instruction for the reason that defendant was not only without obligation to inspect the premises after the installation of the heating system, but defendant was not even privileged to enter the premises and inspect the system, without a request or permission from Mr. or Mrs. Vitale. Neither Mr. nor Mrs. Vitale requested defendant to inspect the system, and neither of them made any complaint to defendant concerning the operation of the system. Gayle v. Mo. Car & Foundry Co., 177 Mo. 427, 76 S.W. 987; Casey v. Hoover, 114 Mo.App. 47, ...
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