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DRAFT FOR ATTORNEY REVIEW — NOT FINAL

Section 204

Citation
Section 204
Parent Document
Duvall v. Stokes, 270 S.W.2d 419 (1954)
Jurisdiction
Missouri (state)
Effective Date
1954-07-17

Full Text

1,678 chars
In the instant case, six witnesses called by defendant (including the building contractor who installed the floor furnace, the floor sander, the electrician and the plumber who worked on the dwelling during January, 1952) testified that it would not have been practicable to have done the work with tenants occupying the house. Plaintiffs offered no' evidence to the contrary; and, although we recognize that, in passing upon the sufficiency of the evidence to support the judgment, we must consider the competent evidence in the light most favorable to plaintiffs-respondents, according to them the benefit of all favorable inferences arising therefrom and disregarding defendant’s evidence except insofar as it may aid plaintiffs’ case [Smith v. Siedhoff, Mo.Sup., 209 S.W.2d 233, 234(1); Williamson v. St. Louis Public Service Co., 363 Mo. 508, 512-513, 252 S.W.2d 295, 297 (1) ; Sollenberger v. Kansas City Public Service Co., 356 Mo. 454, 462, 202 S.W.2d 25, 29(2)], the stated principle does not save plaintiffs in the instant case. For, there certainly was nothing in defendant’s evidence which aided plaintiffs; and, in our view of the matter, the affirmative of the disputed issue (i. e., that the alterations and remodeling admittedly done were such that plaintiffs reasonably could have remained in occupancy while the work was being performed), upon which plaintiffs were required to make a prima facie case, was ■not supported by substantial evidence and could not fairly and reasonably be inferred from the evidence adduced. Hoock v. S. S. Kresge Co., Mo., 230 S.W.2d 758, 759-760(1); Stone v. Farmington Aviation Corp., 363 Mo. 803, 253 S.W.2d 810, 813-814(7-10).