Vitale v. DuerbeckVitale v. Duerbeck
ON MOTION FOR REHEARING.
It is not necessary to go into detail about the motion for rehearing in the instant case. We refer to and adopt, as applicable here, what is said on the motion for rehearing in the companion case of Vitale v. Duerbeck, 338 Mo. 556, 96 S. W. (2d) 691, which opinion on the motion for rehearing in the companion case is handed down concurrently with the filing of this memorandum. The motion for rehearing should be overruled, and it is so ordered. Ferguson and Hyde, CC., concur.
PER CURIAM:—The foregoing memorandum is adopted by the court.
It is contended here, as on the three other appeals, that plaintiff failed to make a jury case and that defendant‘s demurrer to the evidence should have been sustained. In view of the fact that this court, in the two former appeals, held that there was substantial evidence of an internal steam pressure explosion caused by improper and negligent installation of the heating systеm, and that in the second appeal in the Bloecher case (decided concurrently herewith) this court again considered this question, exhaustively reviewed the evidence, and arrived at the same conclusion, it is unnecessary to fully discuss this matter a fourth time, especially because after a careful examination of all four records we are convinced that plaintiff made at least as strong a showing in this case as in any of the others. Neither is it necessary, in view of the fаcts stated in the opinions on the former appeals and the very comprehensive statement of facts in the companion case decided concurrently herewith, to again state in detail evidence, which is practically the same as that stated therein. (The principal witnesses were the same.) Reference is therefore made to that opinion for a description of the premises, the events prior to the explosion, the condition of the heatеr after the explosion, and likewise for the charges of negligence made in plaintiff‘s petition which are substantially the same as in this case.
It is sufficient for our ruling upon the demurrer herein to say that in this case plaintiff‘s evidence tended to show negligence in the installation of the heating system creating conditions which could cause an internal steam pressure explosion, namely: That the equipment installed was ordered for an open system (in which hot water and steam is not confined but can escape into the water mains); that this equipment was used to build a closed system (in which the hot water and steam is confined and can only escape through a relief or safety valve which is set to operate automatically at a certain pressure); that the return line was placed in an unheated basement instead of along the floor of the Vitale rooms as was frequently done in Arcola systems; that the safety valve
Defendant again argues the impossibility of a steam explosion from the firing of the heater, as stated by the Vitales, and the amount of fuel which plaintiff‘s testimony shows was used. However, there is expert testimony that it wаs possible, which we cannot say is unbelievable, and the claimed course of events cannot be said to be so clearly in violation of physical laws and scientific knowledge as to be obviously impossible. Defendant had expert testimony that it was not possible and also to the effect that the condition of the remains of the heater after the explosion and the surrounding circumstances disclosed by the testimony, in their opinion, showed
Defendant also assigns as error the refusal of requested instructions, and the giving of plaintiff‘s Instruction No. 1. Defendant‘s refused instructions were based on the independent contractor theory of defense and the contentions as to them are ruled by what we have said, in our ruling upon defendant‘s demurrer to the evidence. Defendant contends that plaintiff‘s Instruction No. 1 erroneously broadened the issues. Like contentions as to broadening issues were made concerning a similar instruction in the Bloecher case. It is here contended that this instruction is 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.” The petition herein not only contained the allegation set out in the Bloecher opinion but also alleged: “Defendant negligently and carelessly failed and omitted to have said heating system equipped with a suitable safety relief valve properly placed and located so as to properly relieve the pressure that he knew, or by the exercise of ordinary care could have known, was likely to be created in said system by the accumulation of excessive quаntities of air and steam.” We, therefore, hold that the instruction was not broader than the pleadings in this respect. Our ruling on the demurrer to the evidence disposes of defendants’ further contention that this instruction 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
Defendant further contends that this instruction assumes that the existence of certain facts hypothesized therein would be negligence on the part of defendant and assumes that the heating system was negligently constructed. This same contention was made and overruled in the Bloecher case and is likewise ruled against defendant here for the reasons there stated. The ending of the instruction (“and if you further find that the aforesaid acts of negligence, if you find such acts of negligence, directly caused said explosion and plaintiff‘s injuries, then your verdict must be for the plaintiff“), is also here criticized as assuming that all acts hypothesized were negligent. In view of the fact that, as pointed out in the Bloecher case opinion, the jury were specifically required to find the existence of each act or omission charged to be improper in the installation of the heating system, and were then requirеd to find that each such act or omission was negligence, we cannot believe that the jury would be misled by this rather awkward way of stating that they must find that defendant‘s negligence, if any (in these specific separate acts and omissions, all were required to be found because joined in the conjunctive), directly caused the explosion.
Defendant further assigns error in the admission of evidence on behalf of plaintiff. Frank Carter was permitted to testify to measurements made some time after the explosion. The court struck out most of this testimony on defendant‘s request and instructed the jury to disregard it. Anyhow, it was merely cumulative evidence on the proposition that the high point of the system was in the bedroom. There was other substantial evidence of this condition and we cannot find that it was prejudicial or could have changed the result. The same thing is true of the measurements of the witness Fendler who took down the pipes from the Vitale rooms and reassembled them in the courtroom. If he hаd not first measured them it could have been charged that they were not correctly reassembled. Plaintiff‘s expert Geauque was allowed to state that the pipe above the heater was not a proper air vent; that lack of circulation would generate steam; and that the Mueller relief valve was not a proper valve for a steam system. Plaintiff‘s expert Gleser was permitted to say that it was not necessary to see an explosion to understand causes which might create it. We hold that these matters were sufficiently relevant to the issues involved that there was no prejudicial error in admitting opinions concerning them under the circumstances of this case. An expert witness, necessarily, states his conclusions about certain matters which would not be permitted of other witnesses. As long as his opinion is not a mere guess or conjecture but is based upon facts or adequate data it is properly received. “The
Finally, defendant contends that the verdict of $30,000 is excessive. Plaintiff was unconscious for several days after the explosion. Plaintiff‘s right arm and both of her ankles were broken, and her skull was fractured. She sustained many very severe burns (first, second and third degree burns) on her arms, neck, shoulders and back, which required months of hospital treatment to heal. There was evidence that plaintiff would always suffer from headaches and dizzy spells as a result of her skull fracture; that she had a seventy-five per cent loss of flexion in the fingers of her right hand; that she was unable to turn her wrist because of the fracture of her right arm; that she has lаrge scar areas from her burns which still cause pain; and that she suffered great pain and agony during the time she was in the hospital while the burns were healing. In addition to these injuries, a cancer developed in plaintiff‘s left breast which her medical testimony tended to show was the result of trauma and due to injuries received in the explosion. She has already had three operations to remove these cancerous growths which have finally removed the entire breast and even part оf the pleura or inner lining of the chest. Her medical testimony is that more cancerous masses have developed which cannot be removed because they are too near her lung and that this will ultimately cause her death. Plaintiff was twenty-nine years old at the time she was injured and was a normal, healthy young woman. Under this evidence we cannot hold the verdict to be excessive.
The judgment is affirmed. Ferguson and Bradley, CC., concur.
PER CURIAM:—The foregoing opinion by HYDE, C., is adopted as the opinion оf the court. All the judges concur.
HYDE, C.—On motion for rehearing, it is contended that a question decisive of the case, duly submitted by counsel has been overlooked by the court, namely: Plaintiff‘s theory was that there was an air pocket in the joint over the bedroom radiator (because it was the high point of the system and had no air vent); defendant says that if this was true, then the radiator in the shop could not have been warm, on the day of the explosion, according to plaintiff‘s experts, becausе there could be no circulation if there was such an air pocket; but that plaintiff‘s evidence was that the radiator in the shop was warm; therefore, defendant claims that the water must have been circulating and that there could not have been an air pocket. In other words, defendant contends that plaintiff‘s experts did not base their opinions as to the cause of the explosion upon facts actually testified to by plaintiff‘s witnesses (that this radiator was warm), but, on the contrаry, they based their opinions upon an assumed fact (that this radiator was cold) which, according to plaintiff‘s witnesses, was not true.
This proposition has not been overlooked but was considered in both of the opinions, handed down concurrently during this present term, in the two cases arising from the explosion in the Vitale apartment. [Bloecher case, 338 Mo. 535, 92 S. W. (2d) 681, and Vitale case, 338 Mo. 556, 92 S. W. (2d) 691.] In both opinions, it was noted that defendant contended that the testimony of Vitale and Carter had been so contradictory as to destroy its probative value. Both opinions recognized that there were to some extent inconsistent statements and contradictions, but held that these were such as to make the matter a question for the jury, and that there was sufficient other competent evidence in the record to make a jury case. One of the inconsistencies urged in both cases was this specific proposition now stated. The hypothetical question set out in the Bloecher case, however, contained the assumption “that thе radiators furthest away, being that one in the shop, some 30 feet away from the Arcola, were warm.” Therefore, it is evident that all opinions of plaintiff‘s experts as to the cause of the explosion were not based on the theory that the radiator in the shop was cold. Apparently alleged contradictory statements about this matter arise to some extent, because of differences in meaning of witnesses in the use of the term “warm.” Perhaps the term “lukewarm” once used would better describe what the witnesses meant, and be more likely to reconcile their statements, because there was evidence that, even though there was an air pocket which would prevent normal circulation, there could be some reverse circulation through the return line which would cause at least part of the shop radiator to be warm; and that, even though hot water would not circulate through the
Defendant has also filed suggestions of death, supported by affidavit, stating that plaintiff died on November 23, 1935. Plaintiff obtained the judgment appealed from herein, in the Circuit Court of the City of St. Louis, on February 24, 1934. This court‘s opinion, affirming this judgment was handed down on November 12, 1935, during the present September (1935) term, at which the cause was argued and submitted. Defendant filed a motion for rehearing, on November 22, 1935, the day before plaintiff died. Defendant claims that the cause of plaintiff‘s death was cancer, which the evidence herein tended to show was caused by trauma and resulted from the injuries received in the explosion. Defendant contends that plaintiff died from the injuries for which she sued; that her cause of action therefore abated and died with her; and that this would be the result “if her death occurred at any time before final adjudication and settlement of the judgment.” Defendant urges that a rehearing should be granted on this ground so that the matter of whether plaintiff died of the injuries sustained in the explosion, or from other causes, may be determined. [Citing
There is considerable difference, however, between the effect of death of a party before judgment and thereafter. Before the enactment of
From the very first compilation of our statutes down to the present time, there have been provisions for final determination of appeals and writs of error pending, whether one or all parties died before hearing. [See Sec. 53, Chap. II, p. 635, R. S. 1825, and
It is ordered that the final judgment of this court be entered as of the date of handing down the opinion herein and that the motion for rehearing be overruled. Ferguson and Bradley, CC., concur.
PER CURIAM:—The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All the judges concur.