Niman v. Plaza House, Inc.

DONNELLY, Justice

(dissenting).

Plaintiffs submitted and recovered under the doctrine of res ipsa loquitur.

In McCloskey v. Koplar, 329 Mo. 527, 533 , 46 S.W.2d 557, 559 , this Court said: “In general and on principle the doctrine res ipsa loquitur does not apply except 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 defendants contend the res ipsa loquitur doctrine is not applicable because plaintiffs “did not prove that the radiator involved was under the exclusive management and control of defendants.”

The first question which must be determined is whether it is permissible to allow the question of control to be resolved by the jury.

In Cantley v. Missouri-Kansas-Texas R. Co., 353 Mo. 605, 614 , 183 S.W.2d 123, 127 , a res ipsa loquitur case, wherein a division of control between plaintiff and defendant may have been present, this Court because the Federal Employers’ Liability Act was involved, followed the views of the Federal courts, and held that the “jury was privileged to find * * * that plaintiff’s control was not such as to necessarily deprive him of the benefit of the res ipsa doctrine under the Federal decisions.” The Federal view, to the effect that the question of control is for the jury, is articulated in Jesionowski v. Boston & M. R., 329 U.S. 452 , 67 S.Ct. 401 , 91 L.Ed. 416 , 169 A.L.R. 947 .

I would not embrace the Jesionowski position in Missouri, except, of course, where required to do so, as in cases where the views of the Federal courts constitute the supreme law. Cf. Allen v. St. Louis-San Francisco Railroad, Mo.Sup., 297 S.W.2d 483 ; and Chambers v. Missouri Pacific Railroad Company, Mo.Sup., 356 S.W.2d 64 , cases involving the Federal Employers’ Liability Act. I believe that to adopt the Federal view would be to ignore the recognized legal impact of res ipsa loquitur in Missouri and, in practical effect, to eliminate the essential element of res ipsa lo-quitur that defendant have exclusive control of the injuring instrumentality. See McCormick on Evidence, § 309, pp. 643-644, n. 22.

In Harke v. Haase, 335 Mo. 1104, 1110 , 75 S.W.2d 1001, 1003 , this Court said: “What is a res ipsa loquitur case anyhow? Reduced to simple terms, does it not merely mean that negligence can be proved by circumstantial evidence and that certain circumstances, as to the character of an accident, are sufficient to take the case to the jury ? * * * ” The true character of res ipsa loquitur, and the essential function it serves, must be recognized. Its scope is limited. In essence, it is but “one *215 type of circumstantial evidence.” Prosser on Torts, 3rd Ed., § 39, p. 217. In a circumstantial evidence case, “it is a judicial function to determine whether evidence is substantial and whether certain circumstances, as a matter of law, warrant a certain inference.” Hoock v. S. S. Kresge Co., Mo.Sup., 230 S.W.2d 758, 760 . I believe the question whether the doctrine of res ipsa loquitur may be invoked in a given case is one of law for the court.

Plaintiff Louis Niman testified, in part, as follows:

“Q After you lived in the Plaza House for a while, did you and your wife have any complaint as to the method that you were getting heat, the right heat or not?

A Yes, we were complaining about it, and Mrs. Niman took it up with Mrs. Peck.

Q She was a resident manager?

A. Yes.

Q What was your complaint?

A Well, it got so we couldn’t turn the knob. One way or the other.

Q Where was the knob located on the radiator ?

A Same place it is now.

Q Where’s that ?

A. On the bottom.

Q Would it be on the southwest corner?

A On the southwest corner and on the bottom right near the floor. It protruded from the covering of the radiator.

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Q Now, what was the problem with the turn-off valve, or knob ?

A We couldn’t turn it one way or the other.

Q In other words, you just took the heat as it came, is that right?

A That’s right.

Q What did you want to do ?

A. We wanted to be able to lessen the heat or increase the heat, or turn it off.

Q In other words, you wanted to control it yourself, you and your wife?

A All we wanted was to reasonably use it to effect the coolness or warmness of the room.

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q * * * ]sj0Wj did the management do something about this and change the valve or anything?

A Yes, they put a new knob on it.

Q All right. Did you say that was in September, 1961 ?

A I don’t know when it was.

Q They put a new knob, or new valve in there ? What did you do then ?

A All I knew was they had a knob on there that you could turn one way or the other.

Q Would that turn it off and on or anywhere in between?

A Well, we’d just turn up the heat or reduce the heat.

Q Or turn it off?

A. Yes.”

Plaintiff Esther Niman testified, in part, as follows:

“Q (By Mr. Carr) So, from September of ’61, when they put in this shut-off valve you could operate the heat in the apartment by turning this knob here (indicating) all—

A A quarter of a turn.

Q It would turn it off, or on, or anywhere in between, is that right?

A A quarter of a turn for on and completely off.

*216 * * * * * *

Q (By Mr. Carr) Well, you used it off and on, didn’t you ?

A I used it a quarter of a turn and then off.

Q So if you want heat in the room you would turn it on and if you wanted the room cool you turned it off?

A I would turn it a quarter of a turn if I wanted heat. If I didn’t want heat I turned it off.

Q So, in that respect you could control the heat in that room, is that right?

A As far as that was concerned, yes.”

I believe that if there was a division of control between plaintiffs and defendants of the instrumentality which caused the injury, and, under the evidence, it is just as probable that such injury resulted from the act or acts of plaintiffs as from the act or acts of defendants, the doctrine of res ipsa loquitur cannot be invoked by plaintiffs against defendants. Cf. McGrath v. St. Louis Transit Co., 197 Mo. 97, 104, 105 , 94 S.W. 872, 874 , wherein this Court said: “This is not a case, under the facts disclosed, where res ipsa loquitur applies. * * * Where all the facts connected with the accident fail to point to the negligence of the defendant as the proximate cause of the accident, but show a state of affairs where an inference could be as reasonably drawn that the accident was due to a cause or causes other than the negligent act of the defendant, then the plaintiff cannot rely upon mere proof of the surrounding facts and circumstances of the accident, and the defendant is not called upon to explain the cause of the accident, and to purge himself of the imputed or inferential negligence.”

The evidence in this case leaves unexplained the precise cause of the bursting of the ell fitting in the radiator. It is uncon-troverted that defendants were in such control of the general heating system in the apartment building that they could affect temperature in the system throughout the building. However, I must conclude from plaintiffs’ own evidence that plaintiffs could control the circulation of hot water through the radiator in their bedroom by use of the shut-off valve on the front of the radiator. Therefore, I am of the opinion that there was a division of control of the radiator between plaintiffs and defendants, and that it is just as probable, under the evidence, that the ell fitting burst as a result of an act or acts of plaintiffs as from an act or acts of defendants. Cf. White v. Spreckels, 10 Cal.App. 287 , 101 P. 920 .

The principal opinion cites in support of its position the cases of Gladden v. Walker & Dunlop, Inc., 83 U.S.App.D.C. 224 , 168 F. 2d 321 ; Thompson v. Paseo Manor South, Inc., Mo.App., 331 S.W.2d 1 ; Green v. Kahn, Mo.Sup., 391 S.W.2d 269 ; and Minton v. Hardinger, Mo.Sup., 438 S.W.2d 3 . These cases, of course, did not involve applications of the res ipsa loquitur doctrine, The principal opinion holds that the concept of “control,” as applied in those cases, shall be applied in this res ipsa loquitur case. In my opinion, this transference of definition and concept from one theory of recovery to another cannot be justified in this case.

I would hold that plaintiffs failed to make a submissible case for the jury under the doctrine of res ipsa loquitur. However, the circumstances of the case are such that I believe a remand is justified to permit plaintiffs to seek recovery without resort to the doctrine of res ipsa loquitur. Minton v. Hardinger, supra; Shafer v. Southwestern Bell Telephone Company, Mo.Sup., 295 S.W.2d 109 [1]. I would reverse and remand the cause, with directions to grant a new trial on the issue of liability only, and, depending upon the outcome of that trial, to enter judgment for plaintiffs in the amount of $25,800, or judgment for defendants.

I respectfully dissent.