129 Mo. App. 498 | Mo. Ct. App. | 1908
This action was instituted to recover damages on account of starting a fire which consumed an old building which plaintiffs had shortly prior thereto purchased of defendant. The judgment in the trial court was for the plaintiffs.
It appears that the building was frame and was large and old, having been used by defendant as a freight depot. The fire destroyed it and plaintiffs brought this action claiming as damages the loss and value of the separate constituent parts of the building, in the aggregate sum of $2,942.50. The petition alleges the purchase of the building for the sum of $400, and that plaintiffs were to have thirty days from the date of sale in which to remove the west two-thirds of it and ninety days in which to remove the remaining one-third. That the defendant was to have the privilege of remaining- in occupancy of a part of the building until
The instruction given for plaintiffs did not submit to the jury tbe full breadth of the negligence thus charged. The only hypothesis on that head was whether “said stove was permitted to become and remain out of repair, defective, dangerous and unfit for use.” The evidence in plaintiffs’ behalf did not tend to establish that part of the charge in the petition relating to negligence in using explosive oils, or negligence in filling and lighting the stove; or at least, asi will be seen by the instruction just quoted, plaintiffs abandoned all charge of negligence save that the stove was permitted to become and remain out of repair, to become and remain dirty, to become and remain defective and to become and remain dangerous and unfit for use. The chief
In seeming- endeavor to avoid this, plaintiffs invoke the presumption of negligence arising from the rule of res ipsa loquitur. But that rule has no place in a case where specific negligence is alleged in the petition. [McGrath v. Transit Co., 197 Mo. 97; Feary v. Railway, 162 Mo. 75; Kennedy v. Railway, — Mo. App. —.
Defendant’s farther complaint of error relates to the mode of ascertaining the damage and is also Avell grounded. The cause of action Avas loss of the building as it stood and as it was situated under the terms of the contract set forth; that is, a building- on land of another and which Avas to be removed from such land. What Avas such a building Avortb as it thus stood? Not what Avas the value of the lumber of Avhich it Avas composed, the value of the stone in the foundation on Avhich it stood, nor the value of the tin Avhich composed the roof
A further complaint against the judgment relates to expert testimony, the defendant contending that the expert witness stated his conclusions of what did cause the explosion, instead of his opinion, based on superior knowledge, whether certain conditions could cause an explosion. We are of opinion that the position taken by defendant’s counsel is correct. While the record reciting this portion of the trial is singularly obscure, yet enough appears to make certain that the witness Hardy was allowed to substitute himself for the jury. The cause of the explosion was not for the witness to determine. On certain conditions of fact, hypothetically
Furthermore, there was no proper basis for the questions propounded to the expert and the following is the reason: It seems that he was not a witness at the trial, and that his evidence was presented by deposition taken in Chicago prior to the trial. It further appears that there were depositions of other parties which had been taken prior to that of the expert, and also that these depositions had been submitted to the expert, and that questions were asked him based on what he understood from reading them. It further appears that there was no cross-examination • of one of these witnesses until after the deposition of the expert had been taken. The further important fact appears from reading the depositions of these witnesses, that this evidence is subject to different interpretations by different persons.
There is diversity of view as to whether the question propounded to the expert should be a hypothetical one recapitulating to him in the hearing of the jury the questioner’s view of or assumption of the evidence; or,
We think this view is supported rather than rejected by the Supreme Court in State v. Privett, 175 Mo. 207. It is in instances where the reason for the rule is thought to have ceased, that any other than the first mode is permitted; that is to say, in those instances where there is no substantial ground to suppose that different persons could have more than one view as to the evidence which the jury has heard, or that any one could give it more than one interpretation, it is allowable to ask the expert’s opinion on the evidence he has heard, for in such instances the jury may be said to know upon what his opinion is based. And so the Supreme Court, in the case just cited, stated the rule to be (italics ours) that “when, in a proper case for expert testimony, the facts are admitted, or proved by evidence which is not conflicting, the opinion of an expert upon such facts is admissible as a scientific deduction.” In a case formerly decided by that court, it was said that “If the expert has been present in court, and has heard all the evidence, and there is no dispute about the facts, he may then be asked his opinion about the whole matter.” [State v. Klinger, 46 Mo. 224.] The case of Livery Co. v. Railway, 105 Mo. App. 556, in the St. Louis Court of Appeals was where the facts Avere controverted.
We therefore conclude that in this case the usual mode of hypothetical questions should be pursued. The plaintiffs may desire to amend their petition (we express no opinion on that head), and the judgment will therefore be reversed and the cause remanded.