Cohen v. Archibald Plumbing & Heating Co.

555 S.W.2d 676, 1977 Mo. App. LEXIS 2240
CourtMissouri Court of Appeals
DecidedAugust 29, 1977
DocketNos. KCD 27542, KCD 27533
StatusPublished
Cited by8 cases

This text of 555 S.W.2d 676 (Cohen v. Archibald Plumbing & Heating Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cohen v. Archibald Plumbing & Heating Co., 555 S.W.2d 676, 1977 Mo. App. LEXIS 2240 (Mo. Ct. App. 1977).

Opinion

PER CURIAM:

Cohen, et al. [called herein “Cohen”], obtained a judgment upon verdict for $29,-000.00 against Barker submitted on the res ipsa loquitur doctrine as the result of an explosion of lacquer and lacquer thinner which occurred during the construction of an apartment complex. Cohen had sued also Archibald Plumbing and Heating Company and Gas Service Company, but these parties were dismissed upon the court’s sustaining of motions for directed verdict. No issue is presented as to the propriety of the direction of verdicts.

Barker presents points applicable to the res ipsa loquitur submission saying first that the giving of Instruction No. 2 on that doctrine was error because the evidence showed that two or more instrumentalities [678]*678could reasonably have caused the explosion and fire, only one of which was under the management and control of Barker. As to the applicability of the doctrine, Barker says also the court erred in finding as a matter of law that the fire and explosion was an occurrence which does not ordinarily happen if those in charge use due care, and that Barker possessed superior knowledge or means of information as to the cause of the explosion or fire, when several different causes were equally probable, some of which Barker had no more knowledge than Cohen. Other points relating to evidence are that the court erred in excluding testimony of Barker’s expert witness, Dr. Fowler, based upon his tests and a hypothetical question, excluded on the ground that the conditions were not shown to be substantially the same; and that the court erred in permitting Cohen’s expert witnesses, Clark, Yackie, Hyder and Means, to give their opinions as to the cause of the explosion and fire because no proper foundation had been laid, and the opinions were not based upon sufficient competent evidence (facts) but were upon guesswork and conjecture.

Cohen appeals (consolidated Case No. KCD 27533) contending that the verdict was grossly inadequate, indicating mistake and abuse of discretion by the jury, Cohen’s evidence as to damages being uncontradict-ed, thus showing the verdict not to be supported by substantial evidence. This contention may be rather summarily disposed. In the leading case of Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559 (1931), the court said, “In a case where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence himself. The court has no right to tell the jury that it must believe the witnesses. The jury, in the first instance, is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted and unim-peached.” The Cluck pronouncement has been the unvaried rule through a long line of cases. See Boyd v. Margolin, 421 S.W.2d 761, 767 (Mo.1967); Ferguson v. Boyd, 448 S.W.2d 901, 903[1, 2] (Mo.1970). The matter of inadequacy of the verdict was presented to the trial court in Cohen’s motion for new trial, which was overruled. This court then is powerless again to weigh the evidence. Cluck, supra, 40 S.W.2d, page 560[5]; Kirst v. Clarkson Construction Company, 395 S.W.2d 487, 491[6-8] (Mo.App.1965) [a property damage case]; Strickner v. Brown, 491 S.W.2d 253, 255[3, 4] (Mo.1973). Here, Cohen’s testimony was that the difference in the fair market value before and after the explosion and fire was about $60,000.00. The jury’s award was about one-half that amount. There was evidence that the building was only 80% to 90% complete at the time of the explosion and fire. The jury had before it photographs of the damage to the building, as well as testimony describing the damage. Under all the evidence, it was for the jury to determine the nature and extent of damage and to fix the amount thereof. Cohen’s appeal on the basis that the damages were inadequate is ruled against them.

In essence Instruction No. 2, submitted against Barker, required the jury to find that Barker controlled lacquer and lacquer thinner, and the spraying thereof, in Building No. 9; that vapors became ignited and exploded in that building; that the explosion was the result of Barker’s negligence; and as a direct result plaintiffs sustained damage. By Point I.A., Barker contends that this instruction was error (on the theory of the doctrine of res ipsa loquitur) because the evidence showed that two or more instrumentalities could reasonably have caused the explosion and fire, only one of the instrumentalities being under the management and control or the right of management and control of Barker. The contention is without merit because in order to be held not to have made a prima facie case under the res ipsa loquitur doctrine plaintiff’s own evidence must show that there were two or more instrumentalities [679]*679which could have caused the injury, the defendant not being liable for one of them. Here, the evidence of Cohen showed only one reasonable cause — the accumulation of lacquer and lacquer thinner vapors which when mixed with air in proper proportion, would explode and cause fire. It was Barker’s evidence, through his expert witness, Dr. Frank Fowler, who gave his opinion that the explosion and fire was a result of an accumulation of natural gas, a theory which Cohen’s evidence tended to exclude. In this situation, Cohen was entitled to go to the jury upon the submitted theory of Instruction No. 2, and it was up to the jury to determine whether there was another cause of the incident, as Barker’s evidence tended to establish. Robinson v. Southwestern Bell Telephone Company, 434 S.W.2d 249, 254, 255 (Mo.App.1968); Lober v. Kansas City, 74 S.W.2d 815, 823 (Mo.1934); Pandjiris v. Oliver Cadillac Co., 339 Mo. 726, 98 S.W.2d 969, 974 (1936).

It should be noted that Barker’s argument that plaintiffs must exclude those causes over which the defendant exercised no control or right of control, is not the law in this state. That statement was in Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13, 18 (1943). See Cruce v. Gulf, Mobile & Ohio R. Co., 358 Mo. 589, 216 S.W.2d 78, 81 (1948), where it was said, “That statement, unless qualified in its application, is too broad.” And see also Walsh v. Phillips, 399 S.W.2d 123, 128[11] (Mo.1966), citing Adam Hat Stores v. Kansas City, 316 S.W.2d 594, 600[7] (Mo. banc 1958), “[A] plaintiff in a res ipsa loquitur case is not required to exclude every other reasonable theory of nonliability on the part of a defendant.” Long v. Spanish Lake Service, Inc., 507 S.W.2d 935, 938[8] (Mo.App.1974), cited by Barker, is in error in quoting the Charlton case statement in view of the pronouncements, supra, of the Supreme Court on the subject.

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Bluebook (online)
555 S.W.2d 676, 1977 Mo. App. LEXIS 2240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-archibald-plumbing-heating-co-moctapp-1977.