Magill v. Boatmen's Bank , 288 Mo. 489 ( 1921 )

This action is one for damages which was brought against defendant in the Circuit Court of the City of St. Louis, Missouri, on January 15, 1918.

Plaintiff claims to have been injured in a fire which destroyed the Missouri Atheletic Club located in the Boatmen's Bank Building in said city. The fire occurred the night of March 9, 1914, according to the testimony.

Plaintiff's husband was manager of said Club and she resided with him at that place. Plaintiff escaped with her life, but in a seriously injured condition, which will be referred to later.

The building was seven stories in height, and extended west from Fourth Street, on Washington Avenue, 112 feet, and north, on Fourth Street from Washington Avenue, 135 feet.

Plaintiff and her husband occupied Room Number 9 on the 5th floor, which overlooked Fourth Street. She was awakened in the early morning of the night aforesaid, and found the building enveloped in flames, densely full of smoke. Excitement, confusion and panic among those awake reigned supreme. At the time of the fire the building contained approximately one hundred other persons who were asleep, and thirty-one, unable to find means of escape, perished in the flames.

The charging part of the petition reads as follows:

"On the early morning of March 9, 1914, while she was asleep in her said room, fire suddenly broke out on or about the third floor of said building; that she immediately sought as long as she was able in the intense heat and stifling smoke, for means of escape from said building; that because of said negligent, improper and illegal construction of said building, the flames and heat and suffocating smoke from said fire so quickly spread through all parts of said building, that plaintiff's life was greatly imperiled and she was cut off from escape except in the manner and to her injuries, as hereinafter alleged; that said negligent, improper and illegal construction of said building was a directly contributing cause of plaintiff's said injuries hereinafter described; that because of defendant's failure to provide sufficient proper and legal stairways and fire escapes, and balconies and openings thereon, as required by law and as above set forth, plaintiff was forced to attempt to escape at different parts of the said building, and to remain in and about said building in the stifling heat and suffocating smoke and darkness for a long period of time, to her injuries as hereinafter alleged; that defendant's failure to provide sufficient and legal stairways, fire escapes, balconies and openings was the direct cause of plaintiff's said injuries."

The petition further alleges that because of these things she was compelled to escape "through long winding hallways onto an iron stairway enclosed with corrugated iron, built outside of said building and in immediate contact therewith, without lights, and so arranged that she was unable to get off of said stairway except by coming back into the said burning building; that the said stairway, with the corrugated iron surrounding it, was intensely hot and filled with flames and smoke escaping from the said burning building."

Further pleads that she was compelled to "breathe into her lungs the hot, stifling smoke and air contained in said building and in said enclosed stairway; that while escaping she was insufficiently clad, was exposed to the cold wind and air, causing a severe cold and fever, which lasted for a long time thereafter; that her feet and hands and face were badly cut with glass and other objects, and burned and blistered, and she was badly bruised over her entire body; that in escaping from said building, she twisted and turned her left ankle, that has caused her great pain ever since and will always be greatly impaired; that while escaping down said outside enclosed stairway, particles of fire and burning material and debris fell on and against her and she received a severe and painful blow on the face; that she had sustained a fracture of her left arm which, at the time of said fire, was bandaged and in splints; that in making her escape said bandage and splints were torn loose, which caused her said arm to swell badly and greatly aggravate its condition and intensify the pain and suffering, all of which retarded a recovery for many months; that on account of her inexperience in seeking escape from said burning building and in effecting her escape, she received profound and intense shock to her whole nervous system, because of which she was and is and will always be, a nervous wreck; that she was confined to her bed for a considerable time; that she is unable to sleep soundly at night; that she is excitable; that she lost thirty to thirty-five pounds in weight; that her stomach and bowels are impaired and will always be in bad condition, and she will be compelled to consult doctors and take medicines; that her eyes were rendered very weak and the use of them is permanently impaired; that her power of prolonged concentration and her memory are permanently impaired."

She further alleges that she had destroyed in said fire jewelry, silverware, money, trunks, suitcases, handbag and wearing apparel of the value of $1700.

For all of which she prays judgment for $15,000 and costs of this action.

On objection of the defendant the count for property and money destroyed in the fire was stricken out, and the petition was amended and the prayer for judgment remained the same, $15,000.

Defendant answered with a general denial of the averments of the petition, and a plea of assumption of risk on the part of plaintiff.

Trial before the court and a jury resulted in a verdict for plaintiff in the sum of $15,000.

Defendant filed in due time its motion for a new trial which was overruled and the cause was duly appealed to this court.

The facts will be further referred to in the course of the opinion following.

I. In defendant's assignments of error the first is: that the court erred in adopting the construction of the statutes and ordinances in question advanced by the plaintiff and upon which the petition was bottomed.

This is a crucial question as to the plaintiff's right to recover in the case; in fact, we regard other questions as incidental and of no consequence, unless the courtDormitory. committed error upon this proposition.

The precise contention made by the defendant is: "That the burned building was not a hotel or a dormitory, but was aclub house, for which the number of fire escapes should bedetermined by the Building Commissioners of the City ofSt-Louis." (Italics ours.)

The petition alleges that said "club was operated as a general club, boarding and lodging house, dormitory and hotel."

This club was a place where members and their guests lodged and slept, where a large kitchen or cook room was maintained and where they ate their meals. There was also maintained a gymnasium, swimming pool and many other forms of amusement.

The proviso in Section 10668, Revised Statutes 1909, reads as follows:

"Provided, however, that all buildings of non-fire-proof construction three or more stories in height, used for manufacturing purposes, hotels, dormitories, schools, seminaries, hospitals or asylums, shall have not less than one fire escape for every fifty persons or fraction thereof for whom working, sleeping or living accommodations are provided above the second story, and all public halls which provide seating room above the first or ground story shall have such number of fire escapes as shall not be less than one fire escape for every one hundred persons, calculated on the seating capacity of the hall," etc.

The character of the building in question has been settled by this court as a dormitory. [Ranus v. Boatmen's Bank,279 Mo. 332, 214 S.W. 156; Newell v. Boatmen's Bank, 279 Mo. 663, 216 S.W. 918.

These opinions were handed down by Division Number One. They related to the burning of the same building and the same facts were present as in the instant case except that in those cases the parties were burned to death, and in the instant case plaintiff was fortunate enough to escape from the burning building with her life. We rule, in harmony with said cases, that said building was a dormitory.

II. It is contended that the court erred in refusing defendant's requested peremptory instruction at the close of the plaintiff's case. As has been seen the demurrerPeremptory should not have been sustained on account ofInstruction. defendant's contention that said building was not a dormitory, and as to the facts we think they were ample to go to the jury. We overrule the contention.

III. Complaint is made that the court erred in admitting the testimony of Dr. Fry, detailing what plaintiff said she had suffered prior to his examination of her. The testimony relating to this matter is as follows:

"Q. Well, in diagnosing her case, doctor, of course you always ask the patient certain questions and so forth about just what they are suffering from and so forth? A. Yes.

"Q. Did she tell you that she had had any passing of blood?

"MR. HAY: Just a moment. I object to that, as it relates to the past and not then existing symptom.

"MR. SIBLEY: I will modify the question. Did she tell you at that time in telling her condition that she was having passing of blood?

"MR. HAY: Just a moment. I object to that, your Honor. It relates to history and is mere hearsay.

"THE COURT: I will overrule the objection. Objection and exception.

"A. Yes, she told me she had had —

"MR. SIBLEY: What do you call that, doctor, in medical terms? A. Well, we speak of it as metralgia.

"Q. And that means what, doctor? A. Well, that means any irregular passage of blood that is different from the normal menstruation.

"Q. Did she complain, doctor, of suffering pain? A. Yes, she had pains associated with it."

On cross-examination by Mr. Hay: "Q. Doctor, as I understand, what you said about her passing blood was based upon what she told you had taken place prior to the time she saw you, is that correct? A. Yes, sir.

"MR. HAY: I renew my motion and objection to the testimony, your Honor, and move that it all be stricken from the record as being based on statements made —

"THE WITNESS: I might say there that I wouldn't be sure that she made all of these complaints as having been prior to the time she saw me. I don't know but that she had some of them between there. I would not be real sure about that.

"Q. I mean she was referring to what had taken place before the consultation and not during the consultation? A. Yes, that is right, during or between consultations.

"Q. They all related to symptoms antedating the time of the consultation, is that correct? A. Well, certainly, relating to circumstances of the kind before the first consultation, but, as I say, I don't remember now whether between the time of the two consultations.

"Q. But when you had the consultation with her the symptoms of that kind she was speaking about — A. Were what she told me.

"Q. Were what she told you about what had taken place before that, is that correct? A. Yes, sir."

Thereupon Mr. Hay moved that it all be stricken from the record; the court overruled the motion, and objection was made and exception saved.

Defendant cites as authority for his contention the case of Gibler v. Railroad, 129 Mo. App. l.c. 103, which is we think one of the leading cases on the question, from which we quote as follows:

"The rule of law involved in the exception to this expert testimony is examined with discrimination and care in that well-tested repository of sound law, Greenleaf on Evidence, vol. 1, sec. 162, of the sixteenth edition. The rule stated in this treatise and accepted by most, if not all, courts, is that a physician may give in evidence his expert opinion of the condition of a patient, founded on his observation or on the patient's statement of present subjective symptoms, or both, and in giving his opinion the physician may testify not only of what he observed, but what the patient told him about present symptoms."

The assaulted portion of Dr. Fry's testimony was erroneous and constitutes reversible error. [Gibler v. Railroad, 129 Mo. App. l.c. 103; Holloway v. Kansas City,184 Mo. 19; 1 Greenleaf on Evidence (16 Ed.), sec. 162; Insurance Co. v. Mosley, 8 Wall. 397.]

Judge BURGESS, who wrote the opinion in the Holloway-Kansas City case, said: "The court holds in that case (referring to Ins. Co. v. Mosley, supra) that the physician can only give in evidence the declarations of a patient as to `a present existing pain or malady.' The statements of plaintiff with respect to her past physical condition are mere hearsay, and should not have been considered by the expert in expressing his opinion as a witness as to her physical condition at the time of the trial. The decided weight of authority and the better reason we think supports this contention."

On account of this error the cause will have to be reversed and remanded for a new trial. It is so ordered. Railey and White,CC., concur.