Opinion
No. 27805.
March 21, 1950.
APPEAL FROM THE HANNIBAL COURT OF COMMON PLEAS, MARION COUNTY, ROY B. MERIWETHER, J.
Harry Carstarphen, Hannibal, Frank B. Harvey, Hannibal, for appellant.
Fuller, Fuller Ely, Hannibal, for respondent.
This is an action for damages arising out of personal injuries which plaintiff alleges she sustained when a basket fell and struck her while she was in the defendant's store. The case was tried under the res ipsa loquitur doctrine and resulted in a verdict for the defendant. The trial court sustained plaintiff's motion for a new trial on the ground that the jury had been erroneously instructed and it is from this that the defendant appeals.
The defendant operated a department store in the city of Hannibal, Missouri, and in the store it displayed various kinds of merchandise on counters and shelves. On the south wall of the store one such counter was located. The back of it was flush with the wall and it was about 27 inches wide. Along the wall above the top of the counter were narrow shelves upon which lamps and glassware were displayed.
Mrs. Pollard went shopping in the store and she stopped at the south counter to look at some salt and pepper shakers. According to her testimony she had just picked up one of these when a large wicker clothes basket fell from above her and struck her on the head. She stated that she did not see the basket before it struck her and she had not touched it in any way. She also testified to injuries that she claimed to have sustained and called her physician as a witness but it is unnecessary to set out such testimony as it is not pertinent to the points raised here.
The defendant after unsuccessfully moving for a directed verdict called to the stand several witnesses who had been in its employ at the time of the occurrence. Their testimony was to the effect that the basket was about two feet wide and was hanging from a narrow board nailed to the top shelf at the rear of the counter. One handle of the basket had been slipped over the board and the back of the basket rested against the shelves. In this manner the basket was suspended above the counter about one foot higher than plaintiff's head. Two of the witnesses stated that they saw Mrs. Pollard reach up and take hold of the basket, apparently to examine it, and one witness stated that he talked to Mrs. Pollard and she said that she had pulled it down. None of the witnesses saw the basket fall but the two who said that they had seen the plaintiff examine the basket were later attracted by the breaking of some glass which was caused by the basket falling.
The suit brought was for $2950, and after defendant's verdict the plaintiff moved for a new trial on the grounds that three instructions were erroneously given at the request of the defendant. The court held that the instructions were erroneous and that is the point presented by this appeal.
The defendant states first, however, that if the plaintiff had no case properly submissible to a jury the instructions given are of no importance. This is certainly true, for if Mrs. Pollard was not entitled to recover as a matter of law any errors in the instructions given would not be to her prejudice for she would have no case subject to the jury's consideration. Lappin v. Prebe, 345 Mo. 68, 131 S.W.2d 511; Keen v. City of St. Louis, Mo.App., 189 S.W.2d 139. But the defendant goes further and asserts that if the verdict was for the right party any errors in the instructions should not be considered. In support of this contention we are cited to Bartley v. Metropolitan Street Railway Co., 148 Mo. 124, 49 S.W. 840, and Homuth v. Metropolitan Street Railway Co., 129 Mo. 629, 31 S.W. 903. Neither of these cases so hold, for in both of them the court concluded that the plaintiff had made no case for the jury. The question of who is "the right party", where there is conflicting evidence, is a matter for the jury to determine under proper instructions by the court and where a verdict for the plaintiff, if returned, might be allowed to stand then the question of error in the instructions is subject to review. If this were not true, then any errors committed in the trial of the case might be brushed aside on appeal as of no importance if the appellate court agreed with the finding of the jury, and yet the verdict with which such court might agree might not have been reached by the jury under proper instructions.
As to defendant's contention that no submissible case was made by the plaintiff under the res ipsa loquitur doctrine it relies upon Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509, loc. cit. 512. In that case the plaintiff sought damages for an injury that she had sustained when a rolled awning, which was on display with others on a table in the store, fell and struck her on the ankle. The plaintiff's own evidence disclosed that it was the custom for patrons of the store to pick up the awnings to examine them and she herself had picked up and replaced merchandise the day that she was hurt. The court held that the plaintiff had not made a case, stating: "The evidence shows that the customers of defendant's store, including plaintiff herself, handled and inspected goods on the bargain counters at will. `When a plaintiff produces evidence that is consistent with an hypothesis that the defendant is not negligent, and also with one that he is, his proof tends to show neither.'"
We have in the case under consideration no evidence that the basket hung for display above the counter was put there for patrons to handle or remove. Nor is there any evidence that such was the custom of patrons.
In the case of McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, loc. cit. 559, 92 A.L.R. 641, the court stated that the res ipsa loquitur doctrine applies when "(a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence." The occurrence complained of here certainly does not ordinarily happen if those in charge use due care; the basket and the manner of its display was under the management and control of the defendant; the defendant possessed superior knowledge as to what caused it to fall for the defendant had suspended it where it hung and knew the manner in which it had done so. The plaintiff denied that she had touched the basket and the jury was not obliged to believe the defendant's evidence that she had taken hold of the basket before it fell. It must therefore be concluded that the plaintiff made a submissible case.
The first instruction which the trial court found to be erroneous is designated as D-I and is in the following language:
"The Court instructs the jury that the fact that the plaintiff was injured, if you so find, is, in itself, no evidence of negligence on the part of defendant, J. J. Newberry Company, but, on the contrary, the plaintiff must, by her evidence, prove that the defendant, J. J. Newberry Company, was guilty of negligence as charged that proximately resulted in plaintiff's injury.
"And in this connection the jury are instructed that the burden of proof is on the plaintiff to prove her case and to prove by a preponderance of the evidence the negligence of defendant, J. J. Newberry Company, if any, in the particular charged by plaintiff against it.
"The jury are further instructed by the Court that the term `burden of proof' and `preponderance of evidence' as used in these instructions is meant the testimony and evidence in point of value and credibility to sustain the plaintiff's case must outweigh that of the defendant."
This instruction followed one given by the court at the request of plaintiff which hypothesized the facts given in plaintiff's evidence and then informing the jury that if it believed those facts there was sufficient evidence upon which they could find that defendant was negligent.
Respondent urges that the phrase "The fact that the plaintiff was injured, if you so find, is, in itself, no evidence of negligence" is erroneous in that the injury constituted part of the evidence from which the jury could find that the defendant was negligent. The instruction does not preclude it from so doing for the phrase "in itself", means the injury divorced from all the other facts and circumstances surrounding the occurrence. Standing alone, the injury is no evidence of negligence, and the courts of Missouri have so held. Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509; Grindstaff v. J. Goldberg Sons Structural Steel Co., 328 Mo. 72, 40 S.W.2d 702; Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13.
That portion of the instruction which uses the phrase "negligence as charged" followed by the paragraph requiring proof of the negligence "in the particular charged" presents a more serious question. In Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001, 1002, the Supreme Court had under consideration an instruction designated as defendant's instruction C, which was in part as follows: "The court instructs the jury that (the charge of negligence made by plaintiff against defendant by this action must be proved to the satisfaction of the jury by the greater weight of the evidence, and) the burden of proof is on the plaintiff to show that he was injured by the negligence of the defendant. The jury have no right to presume negligence, nor to speculate upon the facts, and if the evidence does not preponderate in favor of the plaintiff, then your verdict should be for the defendant.'" In passing upon this instruction the court stated: "The first italicized part of defendant's instruction C is improper as confusing and misleading, in a res ipsa case, because there is technically no specific charge of negligence made by plaintiff. Since his petition alleges only general negligence, this would tend to mislead." The same question arose in Duncan v. St. Louis Public Service Co., 355 Mo. 733, 197 S.W.2d 964, 966, and in discussing the Harke v. Haase case the court stated: "We said the reference to a `charge' of negligence is confusing and misleading, `in a res ipsa case, because there is technically no specific charge of negligence made by plaintiff. Since this petition alleges only general negligence, this would tend to mislead.' * * Respondent's instruction No. 4 in the instant case does not contain the most serious defect present in appellant's instruction in Harke v. Haase. That is, instruction No. 4 does not preclude the jury from indulging an inference of respondent's negligence upon evidence by appellant of the situation mentioned in her instruction No. 1. Respondent's instruction No. 4 does contain references to a `charge' of negligence, similar to the one criticized in Harke v. Haase, but, reading all the instructions together, we do not believe they would tend to mislead or confuse the jury. Instruction No. 1 clearly and correctly told the jury that, if they believed and found certain facts, they were authorized to find defendant negligent and return a verdict for plaintiff. Instruction No. 4, not inconsistent with No. 1, placed the burden on plaintiff to prove the `charge' of negligence. The only charge was general negligence and, reading the two instructions together, we cannot hold that the effect would be to mislead the jury to believe they were required to find defendant guilty of specific negligence. We do not wholeheartedly approve instruction No. 4. It is unnecessarily lengthy and repetitious, but we cannot hold it to be reversible error."
It will be seen that the instruction we are considering goes much further than the use of the phrase "negligence charged". It requires proof of negligence in "the particular charged". One of the synonyms of "particular" is "specific", and the jury may well have been misled to believe that the plaintiff was required to prove some specific negligence where only general negligence was necessary. The instruction under the rulings of both the cited cases was therefore erroneous.
The next instruction held by the court to be erroneous is instruction D-II, which is as follows: "The Court instructs the jury that if you find and believe from the evidence that on the 12th day of July, 1947, plaintiff was on the premises and in the store of J. J. Newberry Company, and that the plaintiff walked to the place where the basket described in evidence was on display from a rack, and took hold of the basket and pulled it off or took hold of the basket and shook it loose from its position of display, if you so find, or in any manner brought about the change of position of the basket on the shelf or the rack whereon the basket was hanging, resulting in the basket falling, if you so find, then although you may find that the basket made contact with plaintiff, nevertheless plaintiff may not recover under her charges herein against the defendant, and your verdict will be for the defendant, J. J. Newberry Company, and against the plaintiff, Anna Pollard."
It is conceded that the defendant was entitled to have the jury instructed on its theory of the case, but the respondent states that the instruction given should have required the jury to find that the hypothesized acts of plaintiff were the sole cause of the basket falling. One of the requirements of the res ipsa loquitur doctrine is that the instrumentality involved must be in control of the defendant.
"Accordingly, where there are two or more persons or causes which might have produced the injury, some, but not all, of which were under the control of defendant or for which it was legally responsible, plaintiff, in order to invoke the doctrine, must exclude the operation of those causes for which the defendant is under no legal obligation." 45 C. J. p. 1212.
The "sole cause" does not enter into the question for if the jury believed that the plaintiff took hold of the basket, then, as the instruction stated, she was not entitled to recover for her own act of assuming physical control would remove one necessary element of the doctrine upon which she was proceeding. Byers v. Essex Inv. Co., 281 Mo. 375, 219 S.W. 570; Gibbs v. General Motors Corp., 350 Mo. 431, 166 S.W.2d 575; Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509.
The instruction is not erroneous but it is unnecessarily long. It was only necessary to tell the jury that if they found and believed from the evidence that the plaintiff took hold of and handled the basket immediately prior to its fall their verdict should be for the defendant.
The third instruction is largely repetitious of instruction II and should not be given when the case is retried, as it must be, for the error noted in instruction designated as D-I.
It is the recommendation of the Commissioner that the order of the trial court setting aside the verdict and judgment and granting a new trial be sustained and the cause remanded.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The order of the Hannibal Court of Common Pleas setting aside the verdict and judgment and granting a new trial is accordingly sustained and the cause remanded.
ANDERSON, P. J., and HUGHES and McCULLEN, JJ., concur.