*1 Rehearing. On Motion for necessary go It rehearing is not into detail about tbe motion for in the instant case. We refer to and adopt, applicable here, what rehearing is said the motion for. companion Vitale case v. Duerbeck, 338 556, (2d) 96 S. W. on the rehearing motion for companion ease is handed con- down currently filing with the memorandum. motion re- hearing overruled, Ferguson should and it so ordered. Hyde, CG., concur.
PER foregoing CURIAM: The adopted by memorandum is court. Mary Executrix
Olive Vitale of the Estate Wil- v. Duerbeck, liam Duerbeck, Appellant. S. W. 691. One, Division March 1936. *2 Ely Wayne Ely, and Tom Jr., for appellant. *5 respondent. &
Kratky, Soffler, Cox for Nessenfeld *7 564 damages injuries
HYDE, personal is an for C. This action for for this explosion an heater. It is court from an Areola before 1184, 62 W. Duerbeck, 332 S. Mo. time. Vitale v. second [See Duerbeck, after original "William died (2d) defendant, The 559.] A against revived his executrix. the first trial the cause was ex involving growing injuries out of same companion case, Duerbeck, v. here Bloecher plosion, has also been twice. [See Duerbeck, (2d) ;40 v. 553, W. 90 A. L. R. Mo. 62 S. Bloecher prеsent case last trial in S. W. 681.] ap $30,000. has plaintiff Defendant in a verdict for resulted judgment entered thereon. pealed from plaintiff appeals, three other here, It is contended on the to the jury case that defendant’s demurrer failed make this In view fact that have been sustained. of the evidence should two former held that there was substantial court, appeals, in the explosion improper pressure internal steam caused evidence of heating system, in the negligent and that instаllation herewith) (decided concurrently Bloeeher case appeal second again exhaustively question, reviewed considered this court *8 unnecessary conclusion, it is evidence, and arrived same the at the time, especially after fully matter a fourth because discuss this to all four records we are convinced that examination of a careful any strong showing in a ease in plaintiff made at least as this it in view of the facts stated Neither is necessary, of the оthers. very the appeals comprehensive on the former and opinions in the here- companion concurrently in case decided of facts the statement is evidence, practically in detail which the same with, again to state same.) (The principal witnesses were the therein. as that stated description that to a of the Reference is therefore made explosion, the prior the events to the condition of the premises, charges negligence fоr the explosion, and likewise of heater the after substantially which are the in petition same as plaintiff’s in made this case. ruling upon the sufficient for our demurrer herein It is to negligence tended show plaintiff’s this case to in say that in evidence system heating creating which installation the conditions the of namely: explosion, pressure steam That the an internal could cause system (in open for an was ordered which hot equipment installed not but can into water escape steam is confined the water and system (in was to build a mains); equipment this used closed that only escape and steam confined and can which water the hot safety operate is set through valve which to relief or automati a placed return line cally that the was in pressure); certain an at a along floor instead of the of the Vitale rooms basement unheated systems; in Areola the safety that frequently done valve as was eight only door basement feet from outside placed was lеaving opening closed, it to a north exposed not which could be safety upside installed down wide; that this valve was about two feet likely also water be to freeze it and position in a so the would radiators) be in new and sedi- (which present sand was shown to likely in it either of which would interfere ment would to collect pipes were so that operation; with its that the overhead installed system highest where point radiator, in the was over the bedroom the heater, only air vent, was air instead over the where the there no which air form provided placed, pocket vent was would cause an to point system in the and prevent at that circulation the water steam; gauges put result in the formation of the that no on were system pres- heater to show the amount of water in the the either created; put in- and that there was no thermometer on it to sure temperature. sys- the water It was further shown that the dicate (it pounded tem create man who did steam and knocked and the occasions); it installed let steam out of it when called that properly pipes the were not so that were in the fitted there leaks system in; did would reduce amount of water it it satisfactorily operate not even in weather until several mild after changes (he were all the put made man who installed it first changed pipes pipes water in the later basement and the hot water ceiling bedroom); really kitchen and cold first after was day weather it installed commenced on before night very it explosion; that went below zero that cold and was day. explode next plaintiff expert all the heater did had testimony freezing weather, to the effect that in- improper heating system described, particulars stallation of the in the above and the condition (the of remains of the heater water entire front except part pieces, top section blown and the four section) away middle sections were blown from back showed *9 that was an pressure explosion, it internal steam in of opinion the experts. these ¥e must hold, heretofore, as that this substan- was required question tial evidence, which the be the to submitted to ' jury. again argues impossibility explo Defendant the aof steam firing heater, sion from the by Vitales, of and the stated the the plaintiff’s of fuel which testimony amount shows was How used. ever, expert testimony there is possible, that it was which we can say not unbelievable, and the claimed course of cannot be events said in clеarly physical to be so violation and of laws scientific knowl edge obviously impossible. as to be testimony expert had Defendant that was possible it not and to also the effect that the of condition the remains of the heater explosion surrounding after the the and by circumstances testimony, disclosed the in their opinion, showed explosion in and was caused either place that the took fire box the (leath- by gases improper the material for fuel formed from use of blasting etc.) high (dynamite pow- rubber, explosives or er, or from der) to placed course, therein. Of it is not at all unreasonable enough to cause steam, confined, powerful if has believe that force testimony explosion. further contends that the such an Defendant contradictory as been so of Yitale and Carter in all the trials has case, in Bloecher all destroy value. held the probative to its As jury. argues that matters were for the Defendant also been sustained because the installation of demurrer should have heating whose system by independent for was made contractor question negligence liable. This has been defendant would not be to, thoroughly in above and opinions, discussed the other referred against his tenant this defense held not to be available to a landlord 90 A. in note also, under the circumstances shown this case. [See, 62; Law 50; Bulletin, R. 50 Law Restatement L. U. of Series of ruling heretofore made Torts, of sec. We adhere to the (e).] opinions. We, therefore, in hold that reasons stated those correctly the court overruled demurrer to the evidence. .defendant’s requested assigns in Defendant also as error the refusal of giving 1. Defend structions, plaintiff’s and the Instruction No. independent contractor ant’s refused instructions were based on the by what theory of defense the contentions as to them are ruled and' ruling upon have in defendant’s demurrer to the evi said, we our plaintiff’s contends that Instruction No. er dence. Defendant broadening roneously Like contentions as to broadened issues. concerning were made a similar in the Bloecher issues instruction case. It is that this instruction is broader than the here contended safety jury re permitted in it to find that pleadings that likely place lief valve “was installed in a where it was to freeze only thereby petition inoperative.” become herein not con allegaton alleged:. in but tained the set out the Bloecher also negligently carelessly failed to have “Defendant and omitted safety heating system equipped with a suitable relief valve said properly placed properly pressure and located as to relieve the so by ordinary known, knew, that he the exercise care could have likely system by in ex was created said accumulation of quantities We, air and therefore, cessive steam.” hold pleadings respect. instruction was not broader than the in Our ruling disposes demurrer to the evidence defendants’ fur on the this instruction broadеr than the evidence ther contention that (1) jury “in find that the circulation permitted that it of'the system water in the was obstructed an accumulation of air . safety system;. (2) froze; (3) that the relief valve air and system exploded pressure steam thereof accumulalted the. *10 boiler,” all of evidence on because we held that there was substantial questions. these that the
Defendant further that instruction assumes contends this negligence hypothesized existence of certain facts be therein would héating system was part on the of defendant and that assumes negligently constructed. over- This same contention was made and against in ruled here Bloecher ease and is likewise ruled defendant ending if (“and reasons there stated. of the instruction The you negligence, you find further find that aforesaid if acts of directly explosion plain- such negligence, acts of caused said your plaintiff”), tiff’s then be also injuries, verdict must for the is assuming negligent. here hypothesized criticized as all acts were that In pointed view of the fact in the that, opinion, out Bloecher case jury required specifically were find the existence each act to charged or improper omission to be in the installation of heat- ing system, required and were then to each act find that such or negligence, omission was jury we cannot believe that be would stating misled rather way they awkward find that must that negligence, any (in defendant’s if separate acts specific required omissions, all joined were be found in thе to because conjunctive), directly explosion. caused the assigns
Defendant further error in the admission of evidence on plaintiff. behalf Frank permitted testify Carter was to to explosion. measurements made some time after the The court struck testimony request out most of this on defendant’s and instructed the disregard jury merely to it. it was Anyhow, -cumulative evidence proposition high system that the point of the bed was room. was other There substantial evidence of this condition and we prejudicial cannot find it changed that was or could have the result. thing same is true of the measurements the witness Fendler pipes who took down the from the Vitale rooms reassembled them; in the If courtroom. he had not first measured them it could they correctly charged been have that were not Plain reassembled. expert Geauque tiff’s pipe allowed state that to above the vent; proper heater was a air lack gen not of circulation would steam; erate and that thе Mueller relief valve was not ’proper system. expert valve for a steam Plaintiff’s permitted Gleser was say necessary explosion it was not to see understand might causes create it. ¥e hold that these matters suffi were ciently to the issues prejudicial relevant involved that there was no admitting opinions concerning error them under the circumstances expert witness, (cid:127)of this case. An necessarily, states his conclusions certain matters which permitted about would not of other wit long guess conjecture As as his nesses. not a mere but adequate upon is based facts or data it is-properly “The received. *11 568
chief expert value of evidence lies in fact pos that the witness subject superior knowledge consideration, sesses of the under and by training, reason his study, experience of and he is able discern to connection, any, and trace the causal if between successive events.” Wells, see, (2d) 187; 328 448, v. Mo. 41 S. W. l. c. 184, [DeDonato also, Century Co., v. 336 W. 961, Phares Electric 82 Mo. S. (2d) 91; v. 334 Louis, Kimmie Terminal Assn. St. Railroad of 561; 992, Mo. 66 (2d) Young Wheelock, S. W. v. 333 Mo. 64 (2d) circumstantially S. may W. “An event be evidenced 950.] by 436; Wigmore by Evidence, 769, a cause or an effect. sec. [1 ”' also, Wigmore’s see, Principles Proof, chap. of Judicial XVII.] Gas, City v. Co., Kansas S. W. [McDonald testimony experts From a careful consideration of of these 37.] and record, they whole our conclusion were allowed is that not conjecture to speculation enter into and or immaterial issues and specific opinions complained the' misled or of could not have ' jury. confused the Finally, $30,000 defendant contends that verdict is of days excessive. Plaintiff was unconscious for several after the ex right plosion. broken, Plaintiff’s arm and both of her ankles were many very her and skull was fractured. She sustained severe burns degree burns) (first, arms, neck, and second third on her shoulders back, required hospital and months heal. of treatment to There was plaintiff always evidence that suffer from would head dizzy spells fracture; aches and as a result of her that she had skull seventy-five per fingers ; a right cent loss flexion in the her hand she was unable to turn her wrist the fracture her because of right arm; large that she has scar areas from her which still burns great during pain; agony cause and that she suffered pain and healing. time she hospital was in the while the burns were In ad injuries, dition developed plaintiff’s cancer breast left testimony which her medical tended to result of trauma show was the injuries already explosion. and due to recеived She has had operations growths three to remove these cancerous which have finally part pleura removed entire breast and even of the lining testimony inner Her can of the chest. medical is that more they developed cerous masses have which cannot be removed because lung ultimately are too near her and that this will cause her death. injured twenty-nine years Plaintiff was the time was and old at she healthy young can normal, was a woman. Under evidence wе not hold the be excessive. verdict to Ferguson judgment Bradley, GO., is affirmed. concur. foregoing
PER opinion by Hyde, C., adopted CURIAM: The judges as the of the All the court. concur. Suggestions Rehearing of Death. Motion
On ques- that a rehearing, it is contended HYDE, motion for C. On has been over- by counsel duly case, of the submitted tion decisive theory there was was that namely: Plaintiff’s court, looked (because it radiator joint over bedroom pocket in the an air vent) says ; air defendant system no high had point havе not shop could true, in the then the radiator that if this was ex- according plaintiff’s day explosion, warm, of the been on the was' such if there no circulation could be perts, because there *12 in the radiator was that the plaintiff’s that evidence pocket; air but water must warm; claims that therefore, was defendant the shop an air circulating not have been and that there could have been experts plaintiff’s that pocket. words, defendant contends In other upon explоsion opinions as to the cause of the did not base their by (that this radiator actually witnesses plaintiff’s facts testified to but, they opinions upon their warm), was the based contrary, on according cold) which, to (that this radiator was assumed fact plaintiff’s witnesses, was not true. in proposition has not been overlooked but was considered
This concurrently during opinions, pres- the handed this both of down arising term, explosion in the two eases from the in the Vitale ent apartment. 535, (2d) 681, 92 case, 338 S. W. Mo. [Bloеcher case, opinions, 556, Vitale S. W. In both it 691.] testimony that Vitale was that defendant contended the of noted destroy probative its contradictory and Carter had so to been recognized were extent in- opinions value. Both that there to some contradictions, were statements and but held that consistent question jury, that there such as to make the matter a for the competent in make a was sufficient other evidence record to the urged jury in both cases was this case. One of the inconsistencies specific hypothetical question set proposition now stated. The out case, however, assumption the Bloecher the “that the contained being 30 feet away, shop, radiators furthest that one the some away Areola, Therefore, the warm.” evident that from were it is all were opinions plaintiff’s experts explosion of of as to the cause the theory shop not based on the that the radiator in the was cold. alleged contradictоry Apparently statements about this matter arise extent, in meaning to some because of differences witnesses in the of “warm.” Perhaps use of the term term “lukewarm” once used likely meant, would better describe what thé witnesses and be more statements, that, reconcile their because there was evidence even though was pocket prevent there an air which cir- would normal culation, through there could be some reverse circulation the return part warm; line which shop would cause at least of the radiator to that, though through even hot water would not circulate go through wojild upper pipes, the air pocket some steam could We, therefore, warm the radiator to some extent. adhere to conclusion, opinions cases, reached in in these heretofore four two jury theory that steam plaintiff’s there was a case for the on of a explosion negligent heating system. due installation of suggestions death, by
Defendant also filed оf affi- supported has davit, stating plaintiff 23, that on November 1935. Plaintiff died judgment appealed herein, in obtained the from Court Circuit February 1934. City Louis, 24, opinion, of St. on This court’s affirming judgment was handed down on November 12, during present September (1935) term, at which the cause was argued rehearing, a motion and submitted. Defendant filed 22, 1935, day November died. plaintiff before Defendant claims cause plaintiff’s cancer, death was which the evidence herein tended to show caused trauma and resulted from injuries explosion. plain- received' in the Defendant contends that injuries sued; tiff died from the for which she her cause ac- her; tion therefore abated and died with and that this be the would any adjudication result “if occurred her death at time before final urges rehearing judgment.” and settlement of the Defendant that a ground granted should be on this so that the matter whether plaintiff injuries in the explosion, died of sustained other or from may causes, 1929; be determined. See. R. S. Adels- [Citing *13 berger (2d) Sheehy, 336 Mo. 79 109; v. S. W. v. St. 497, Jordan Joseph Ry., L., Co., 319, & P. 335 73 (2d) H. Mo. S. It W. 205.] true, claims, is as defendant that authorities, under if before judgment she this in court, plaintiff obtained the circuit died had injuries from in personal received the she explosion, for which brought her; suit, then no action therefor would have survived only anyone and cause that of action could have would be new, separate by wrongful distinct cause of action created our City death v. Co., statute. Cummins Kansas Public Service [See 672, (2d) 334 66 W. 920, Mo. S. and cases cited.] difference, however, There is considerable between the effect of judgment a party death of before and thereafter. enact Before the 3280, plaintiff ment of Section the death aof did abate his cause personal injuries, of action for sued whether on or there not, and Joseph Ry., L., Co., be no revival. v. St. could H. & P. [Jordan supra ; Rule, 84, (2d) 327 34 90; Heil v. Mo. S. W. rel. State ex 51; v. 314 283 Daues, 13, Thomas Mo. S. W. Greer Louis, v. St. I. M. & 173 158 Co., App. 276, S. Mo. S. W. Railroad But even 740.] enactment, if plaintiff before its a after died a cause judgment, his did not abate because сause of action merged had become L., judgment. I. M. Co., Admr. v. St. & S. Railroad [Lewis, 495; 577; 82 McDaniel, 59 v. Mo. Lewis Mo. R. I. C., Crawford v.
571 68, 350; 171 Mo. 66 S. St. Louis Co., P. Railroad W. Behen v. & Fran 430, 346; 85 S. Co., Transit W. Siberell v. St. Louis-San 186 judgment is Co., 916, 320 Mo. 9 W. A cisco Railroad S. 912.] right debt, goes, upon death, which property a a the owner’s representative regardless may personal his of what have been secs. upon 169, cause action which it was obtained. C. J. [1 (N. 584; 35; 52 288-289, p. 38, sec. 1 R. C. L. L. R. A. 263, sec. S.) note; note; note; see, R. 694 62 1048 14 A. L. A. L. R. also, L., S. v. Co., supra; Lewis v. St. I. M. & Railroad Crawford Co., C., Co., supra; R. I. & P. Millar v. St. Louis Transit Railroad 99,Mo. 115 S. It well "after W. hаs been stated that 521.] giving judgment, judgment, controversy of the is over the original wrong.” Co. not over the v. Pacific S. S. Coast [Fowden appellate Pac. An cause of (Cal.), try court does not 178.] action but determines whether the trial court committed er or not ror when it tried the cause action. very compilation
From the pres- first of our to the statutes down ap- time, provisions ent there have been for final determination peals writs of died pending, parties error whether all one or hearing. 53, Chap. II, p. 635, 1825, before Sec. R. S. [See 1054-1057, Secs. R. S. may It be it is there said noted 1929.] appeal thereby abate,” "the or writ of error shall instead of not upon "causes may of action which been or hereafter be suit has brought. . . . shall not abate” as in Revised Stat- 3280, Section utes action shall 1929, by "no abate the death ...
party,” 891, judg- in Section Revised Statutes 1929. When a court, ment is an appellate affirmed cause of action merged it, merely merged became ifa it rendered, when was remains judgment therein. When a is reversed it ceases to exist and merger is nothing terminated because remains in which the there merged. cause of action really could The reversal a deter- properly merged mination that it never prejudicial because of judgment and, therefore, error rendition of the it reverts to its original 292; merely status of a cause of action. C. J. sec. [1 1 R. C. L. provided quoted sec. As in the statutes above 35.] *14 for revivor if appeal, party (either the sole or parties appel- all respondent) judgment lant or die after and of submission before in the appellate court, suggestions case must be of death there personal and substitution heirs representatives. of or This is not such deaths affect the judgment, because but it is because "where a to an party judgment, action dies after authority of his attor- ney terminated, prosecute is appeal, or otherwise act any case one, authority so as to bind he must obtain em- ployment by the deceased’s personal representative;” and because judgment affecting "no or other order entered, the merits can be are the binding upon those who revivor, which be would
before Burns, v. party.” the deceased in interest of successors [Carter parties die (2d) party If such 61 W. S. 933.] necessary court, revivor is in this no appeal after submission of under required has been are to do done parties all that because is rule authority, protect rights, all “it our and to proper of submission.” judgment be entered as of date will [Batson cited; provisions as to (2d) 46, 89 W. and cases (Mo.), S. Peters v. usually rel. judgment controlling see State ex appellate date court Indemnity (Mo.), Park Bank v. Globe Co. National to Use of judgment entry death, the By before date of (2d) 62 S. W. 1065.] of submission binding all, after the time upon who from or becomes be party. Our conclusion must the deceased could claim under injuries judgment a for her own plaintiff had recovered that, since her the death defendant, a from which had status оf debt due appeal therefrom and after of defendant’s plaintiff, submission affirming judg- opinion down an this court had handed after necessary way any revival, any cannot in af- ment, make does not granting grounds a not constitute for judgment, and does fect rehearing. judgment be entered as of this court
It is ordered that the final handing opinon herein and that the motion date of down the Ferguson Bradley, CC., concur. rehearing overruled. foregoing adopted opinion by Hyde, C., PER CURIAM: The judges All of the court. concur. Relation at the of Missouri Orscheln Brothers Truck State Corporation, Appellant, Lines, Inc., v. Public Service Com- mission of Missouri. 92 S. W. 882. One,
Division March 1936.