VELNA M. SOLOMON v. MOBERLY LIGHT AND POWER COMPANY, Appellant
SUPREME COURT OF MISSOURI
May 13, 1924
303 Mo. 622
We therefore hold that such portion of respondents’ opinion as approves the allowance in the trial court of damages for vexatious delay must be quashed. All concur.
In Banc, May 13, 1924.
1. PLEADING: Amendment After Verdict and Judgment. Plaintiff being compelled at the close of the evidence, upon the motion of defendant, to elect upon which of the three counts of her petition she would go to the jury and having elected to stand on the third count, it was not error to permit her, after verdict and judgment in her favor, to amend said third count by adding thereto the allegation of negligence contained in the abandoned first count, where no demurrer was filed or other objection made to the petition and the case was tried throughout as it would have been had said third count contained the words inserted therein by the amendment.
2. NEGLIGENCE: Invitee: Trespasser: Licensee. An electrician who was requested by his neighbor, whose brother had been found lying under an automobile in his near-by garage and brought to her house in an unconscious state, to go to the garage and ascertain how the brother was injured, such information being necessary to a proper treatment of the injured man, and when there took hоld of an electric wire or lamp cord, to which was attached a bulb which he attempted to use in examining the car, and which was not properly insulated, and which had come in contact with another uninsulated wire of 2300 voltage suspended on poles and run through trees outside the garage, and was thereby killed, was not a trespasser or licensee in the garage, but an invitee, and entitled to the same protection against the negligence of the light company as the neighbor would have been had she herself gone to the garage for the same purpose.
4. ——: Electric Wire: One Hundred and Ten Volts: Installed by Owner of Building. Conceding that if the invitee was killed by an uninsulated electric wire carrying only 110 volts, plaintiff cannot recover damages for his death if the electric equipment in the garage where the wire was in use was installed, owned and controlled by the garage keeper and not by defendant light company, that issue was properly submitted to the jury by an instruction which required the jury to find that defendant negligently permitted said wire to come in contact with another uninsulated wire of 2300 voltage at a point at which defendant had sole control of both wires.
5. ——: Inference Upon Inference. Where there is substantial circumstantial evidence connecting the negligence of defendant with the electrician‘s death, a verdict for plaintiff, based upon proper instructions requiring the jury to find that such negligence was the cause of his death, is not based upon conjecture, or the placing of presumption upon presumption, or the drawing of inference from inference.
Headnote 1: Pleading, 31 Cyc. 406. Headnote 2: Electricity, 20 C. J. sec. 40; Negligence, 29 Cyc. 456. Headnotes 3 and 4: Electricity: 3, 20 C. J. sec. 66; 4, 20 C. J. sec. 69. Headnote 5: Evidence, 22 C. J. sec. 27.
Appeal from Randolph Circuit Court.—Hon. Allen W. Walker, Judge.
AFFIRMED.
Willard P. Cave and Hunter & Chamier för appellant.
(1) It was error for the court to permit plaintiff to amend one month after the verdict had been returned and judgment entered, the third count of her petition
Redick O‘Bryan and John T. Barker for respondent.
(1) There was no error in allowing plaintiff to amend her petition to conform to the proof which had gone in without objection.
RAILEY, C.—On August 31, 1921, plaintiff filed in the Circuit Court of Randolph County, Missouri, her petition against the Moberly Light & Power Company to recover damages in the sum of $10,000 on account of the electrocution and death of her husband, Harry Solomon, through the alleged negligence of said defendant company. The case was tried in the above county before a jury and, on February 21, 1922, a verdict was returned in favor of plaintiff for the sum of ten thousand dollars and judgment was entered accordingly. Motions for a new trial and in arrest of judgment were filed and overruled, and the cause duly appealed by it to this court.
Plaintiff‘s petition contained three counts, but, аt the conclusion of all the evidence, she was required by the court, at the instance of defendant, to elect on which count she would proceed to trial. She accordingly elected to stand on the third count, which charges, in substance, that on and prior to August 8, 1921, defendant was manufacturing and furnishing electricity for light and power to its customers at Moberly, Missouri; that it owns and operates in said city a system of wires strung on poles in the streets of said city by which means electric current is carried over, upon and through said streets from defendant‘s plant to its various customers, as aforesaid;
That on said date, and for a long time prior thereto, defendant maintained and operated two sets of electric wires, one with a heavy voltage and one with a less voltage; that the two wires carrying the different voltage were maintained on the same poles, and in passing over Ault Street said wires were maintained through certain trees along the side of said street; that by reason of said wires running through said trees, the limbs thereof came in contact with said wires, and the insulation on the latter became worn and defective, so that the wire containing the heavy voltage, on account of such defective insulation, came in contact with the wire containing the less voltage, which had also lost its insulation as aforesaid and, as a consequence, the wire containing the heavy voltagе, in crossing the wire with the less voltage, or the limbs coming in contact with said wires, communicated such heavy voltage to the other wire; that on said August 8, 1921, the said Mrs. Maude Moore was a customer of the defendant, and the latter furnished electric lights for the said Ricker‘s garage; that defendant‘s wires entered said garage and it had caused to be used a long extension cord with an electric light bulb at the end of same, so that it could be moved back and forth throughout said garage
Defendant‘s first amended answer admits that it is a corporation, and denies every other allegation in plaintiff‘s petition. It pleads contributory negligence upon the part of plaintiff‘s husband, and further alleges that the wiring in the Ricker garage was defective and dangerous, and was not installed by defendant, but by said Oliver Ricker in a careless, negligent and defective manner for his own use in lighting said garage, all of which dangerous and negligent construction was fully known by said Harry Solomon. It further alleges that all electrical wiring done by it ceased upon the delivery of current at the point of entry to a customer‘s premises, and does not extend to the wiring inside of any inclosures, dwellings or garagеs, which are constructed by the respective owners or occupants of said building, dwelling or garage; that the same are not subject to the control of defendant company, etc.
The reply is a general denial of the new matter pleaded in said answer.
As appellant is insisting that its demurrer to the evidence at the conclusion of the whole case should have
The plaintiff offered substantial testimony tending to show that defendant, on and prior to August 8, 1921, was engaged in manufacturing and furnishing electricity for light and power to its customers and consumers in Moberly, Missouri; that it owns and operates in said city a system of wires strung on poles erected in the streets of said city, by which means electric current is carried over and through said streets from defendant‘s plant to its various customers as aforesaid; that it maintained certain wires on poles which ran along and over Fulton Avenue and North Ault Street, as well as other streets in said city, to the meter at the residence of Mrs. Maude Moore, at 651 North Ault Street in said city. Mrs. Moore testified on cross-examination that defendant hаd nothing to do with the wiring of the Ricker garage; that her brother, Oliver Ricker, and Mr. Dent did the wiring in the garage about one year before the date of trial.
On cross-examination of L. C. Sevier, a witness for defendant, it was developed that the meter is installed in the house to measure the current the customer uses; that the company wires down to the meter, and the customer can do what he pleases with the current beyond the meter; that these meters are read once every month.
The evidence shows that there are ten trees on the east side of Ault Street in the 700 block, and that the wires heretofore mentioned ran through these trees. This had been true for several years before deceased wаs killed. Ault Street runs north and south and the Ricker house was located about the center of the 600 block. The plaintiff and deceased lived at 641 North Ault Street, near the Ricker home in the 600 block. The 700 block is north of the latter, and the trees through which the wires ran were on the east side of same. There were two wires on a
The condition of wires as to insulation, running through trees and coming in contact with limbs thereof, is set out in appellant‘s statement of the facts as follows:
Mr. Guthrie testified that in passing along Ault Street in the 700 block he had noticed “a flickering sensation upon the trees during the night.” He said “probably the wind would be blowing or storming and a flickering sensation would be up in those trees like you touched two electric wires together,” and he said that he had noticed this for a year or two before the death of Solomon. He also said that during this time the limbs of those trees could touch all four of the wires in that block in case the limbs would get broken and fall over; that these were green growing trees; that the wires were in a sagging condition, so that when windy they would swing back and forth, and that he had observed the wires prior to the death of Solomon swing and touch the trees between the poles.
The record shows that there were places where the insulation was off for a distance of from one inch to fourteen or sixteen inches on primary and secondary wires in the 700 block on Ault Street where they ran through the trees, and at a number of these places the wires were bare, and there were also places on the limbs where the bark had been rubbed off; that the wires were so loose in the trees in the 700 block that the wind could blow them together; one witness said that he did not know how long the insulation had been off, but he had seen the fire playing in the trees for four or five years; another said he had seen fire in these trees two nights be-
Mr. A. J. Evans, an electrician of fifteen years’ experience, who lived at Moberly, testified that there was sufficient sag between the poles from Madison Avenue to Fulton to allow those wires to touch in the middle of the block. He further testified as follows:
“Q. Now, have you occasion to examine those linеs running through and along those trees you have described with reference to insulation, whether or not it is worn? A. The insulation is worn off in places through those trees.
“Q. In how many places is the insulation worn off in those trees? A. Some places it is worn off more than others; some run all the way from six inches to a foot in different places.
“Q. Is that on the primary or secondary wires or both? A. On both.
“Q. Assuming that a wind is blowing and causes the limbs to move back and forth, would that throw these wires together there? A. Yes, it could.
“Q. Now, assuming that a limb of a growing tree would fall across two wires, would that carry the current from one to the other? A. Yes, sir.
“Q. And in case a limb was across a 2300-voltage wire and a 110-voltage wire, would that carry the 2300 into the 110? A. Yes, sir.”
The testimony оf Mr. Evans, supra, was corroborated by that of witness Hopson.
Without elaborating the subject further, we think there was ample substantial testimony on the part of plaintiff tending to show that, with the conditions as above described, it was a question for the jury as to whether the deceased came to his death on account of a voltage in the wire of the garage in excess of 110 ordi-
Turning to the other branch of the case, the evidence tends to show that deceased was an electrician, was familiar with the proper method of installing wires in houses, and was familiar with the danger of being shocked by the use of electricity. He was a neighbor of Mrs. Moore‘s and received an emergency call from her home for assistance. Mr. Oliver Ricker, the brother of Mrs. Moore, was found under an automobile in his garage unconscious. A controversy arose among those who came to assist Mrs. Moore in her distress, as to whether the car had run over Ricker or whether he had been injured by electricity or in some other manner. After Ricker had been removed from under the car to another room, and was still unconscious, Dr. Megee arrived, and a discussion arose as to what caused Ricker‘s condition. The deceased was of the opinion that Ricker had been injurеd by the car, but the doctor said he looked like a man who had been gassed. The deceased, in order to ascertain the cause of Ricker‘s injury, started to the garage, followed by some of the others present. Dr. Megee said that before deceased started to the garage he said to him, “Don‘t go yet, Harry, and wait a minute.” This was about all that was said by the doctor, and there is nothing in the evidence to indicate that deceased heard or understood what the doctor had said, as the latter did not speak very loud. The deceased, at the time of his death on August 8, 1921, was in his sock feet and wearing a hickory shirt. The evidence tends to show that he entered the garage, held the socket attаched to a cord, in his right hand, with an electric light bulb at the end of same; that he looked under and around the car, and suddenly walked in front of the automobile, or thereabouts, stiffened up, suddenly gave a kind of gurgling sound, continued to hold onto the socket, fell over against the north side and died. The evidence also tended to show that
The testimony of plaintiff‘s expert witnesses tended to show, that the death of deceased could not have been produced by a voltage of 110, under the circumstances aforesaid, and that in their opinion he was killed by a voltage greatly in excess of 110. There was conflicting testimony upon this subject.
The court gave instructions to the jury, modified some of those asked by defendant, and refused other instructions requested by appellant.
The rulings of the court during the progress of the trial, and such other matters as may be deemed important, will be considered in the opinion.
Amendment After Verdict.
I. Under proposition one of appellant‘s “Points and Authorities” it is said: “It was error for the court to permit plaintiff to amend one month after the verdict had been returned and judgment entered, the third count of her petition (the one she elected to stand on), by adding thereto the assignment of negligence containеd in her first count (the count she had abandoned by her election).”
Appellant made no objection to the introduction of evidence under either count of petition on the ground that defendant had not been charged with either actual or constructive knowledge of the unsafe and negligent condition of said wire. Nor was a demurrer filed as to either count of said petition. A number of witnesses testified in behalf of plaintiff, without objection, as to the negligent condition of the wires, and as to the length of time they had been in that condition. In other words, the case was tried throughout, as it would have been had said count three contained the language inserted by said amendment. The plaintiff, under the circumstanсes aforesaid, was entitled under
In the recent case of Ehrlich v. Mittelberg, 252 S. W. l. c. 676, in discussing the subject now before us, we said:
“Aside from the foregoing, the facts which appellant insists should have been alleged in petition were proven without the objection, and stood unchallenged at the trial. Under such circumstances, it would not be proper for this court to treat the petition as void, even if it defectively stated a cause of action attempted to be pleaded therein. On the contrary, as respondents would have been entitled in the trial court to amend their petition to correspond with the facts proven, we will treat the petition here as having been properly amended.”
The authorities supra were cited in support of above quotation. The foregoing assignment of error is accordingly overruled.
Licensee.
II. It is contended by appellant that “deceased was a mere trespasser, licensee or volunteer, and defendant was under no legal obligation other than to do him no willful or wanton harm,” etc.
We have carefully read and fully considered the list of cases cited by appellant in support of above contention. We are of the opinion that the deceased, under the facts in this case, was neither a trespasser, licensee nor volunteer
Turning to the testimony of Mrs. Maude Moore, the sister of Oliver Ricker, we are informed that she sent her boy to the garage to put away his wheel. The lad soon returned and gave it as his opinion that something was wrong with his uncle, Oliver Ricker, as he was under the car. Mrs Moore ran to the car, and found the head and shoulders of her brother under the car close up to the wheel. She ran outside and called for deceased and Eagan, who were near neighbors. Two other gentlemen, with the above, were the first persons there. The deceased came to the garage and with the assistance of Eagan lifted the car, while the other men dragged her brother out. The latter was taken into the house and, while lying there unconscious, a controversy arose between those present, as to whether he was hurt by the car, or by gas or electricity. The deceased, who was an electrician and familiar with the wiring of the garage, went back to the latter to ascertain how Mr. Ricker had been injured and, while on this errand, was killed. He was there upon the express invitation of Mrs. Moore, for the purpose of aiding and assisting her in a time of emergency. He was not there on any business of his own, but was performing a neighborly act in behalf of Mrs. Moore and solely upon her invitation. We are of the opinion, based on the facts before us, that deceased at the time and place of his death, was an invitee of Mrs. Moore, and was entitled to the same protection against the negligence of the defendant complained of, as would have been accorded to Mrs. Moore, had she been injured while performing the same acts which resulted in the death of plaintiff‘s husband. [Godfrey v. K. C. L. & P. Co., 253 S. W. l. c. 236; Main v. Lehman, 243 S. W. l. c. 93; Oakley v. Richards, 275 Mo. l. c. 276, 204 S. W. 505; Williams v. Gas & Electric Co., 274 Mo. 1, 202 S. W. 1; Sudmeyer v. Ry. Co., 228 S. W. 64; Campbell v. United Rys., 243 Mo. 141, 147 S. W. 788; Clark v. Railroad, 234 Mo. 396, l. c. 418-19, 137 S. W. 583; Glaser v. Rothschild, 221 Mo. 180-1; Von Trebra v. Gaslight Co., 209 Mo. l. c. 658 and fol.; Hollis v. Merchants’ Assn., 205 Mo. l. c. 520-1; Ryan v. St. Louis Transit Co., 190 Mo. 621; Young v. Waters-Pierce Oil Co., 185 Mo. 634; Geismann v. Mo.-Edison Electric Co., 173 Mo. l. c. 674; Godfrey v. K. C. L. & P. Co., 247 S. W. 451; Beckwith v. City of Malden, 253 S. W. 17; Grady v. L. L. P. & T. Co., 253 S. W. 202.]
Regardless of the rulings in other jurisdictions, the law is so well settled in the foregoing authorities of our own State, in respect to above proposition, that we have not deemed it necessary to quote therefrom. The above assignment is accordingly overruled.
Contributory Negligence.
III. Under other propositions of appellant‘s “Points and Authorities” it is claimed that deceased was guilty of contributory negligence; that he voluntarily assumed a position of danger and was, at the time of his injury, meddling without right with the electrical equipment in Ricker‘s garage. The cases cited do not deal with facts similar to those at bar and, even if they did, we would not hesitate to follow the rulings of our own courts, as promulgated in the well considered cases heretofore cited.
We have held in the preceding proposition that the jury were justified in finding from the evidence that deceased was an invitee at the time and place of his death, and that he was lawfully there assisting the owners of the home and garage, and was not there to transact any business of his own. It will appear from the preceding statement, that Mr. Ricker was lying in the house unconscious, with the question undetermined as to whether he was run over by the machine or gassed. It was important to know, in treating Ricker, whether he was injured by the machine or otherwise. The deceased, as their invited friend, in attempting to aid Ricker and his
Contact Outside of Garage.
IV. Appellant contends that: “If deceased was killed by 110 volts and by reason of the defective electric equipment in the garage, plaintiff cannot recover, because the electric equipments in the Ricker garage were installed, owned and controlled by Rickеr and not defendant.”
The evidence was conflicting as to whether deceased was killed by 110 volts furnished by defendant for residence purposes, or by a voltage greatly in excess of 110. The court properly submitted this issue to the jury in plaintiff‘s instruction numbered one, and defendant‘s Instruction Five, as modified by the court. Said instructions read as follows:
“The court instructs the jury that if you believe and find from the evidence that on the 8th day of August, 1921, the plaintiff was the wife of Harry Solomon and that on said date the defendant owned and operated electric wires strung on poles along Fulton Avenue and North Ault Street, near the dwelling and lots of Mrs. Maude Moore and the garage of Oliver Ricker, also situated on said lots, and that said wires сonsisted of two wires known as primary wires carrying a voltage of approximately 2300 volts, and two other wires, known as secondary wires, carrying approximately 110 volts, and that defendant was furnishing electricity from said
“5. (As modified). The court further instructs the jury that if you believe from the greater weight of the evidence in this cause, that the equipment and wiring of the extension cord and the bulb and socket attached thereto were of defective, inferior and dangerous construction; and if you further believe from the greater weight of the evidence that no more than the normal amount of current, to-wit, 110 volts, wаs passing through said electric wire, at said time and place, then the de-
These instructions were consistent with each other, and fully informed the jury as to the law in respect to said subject.
Inference Upon Inference.
V. Under another proposition appellant asserts that: “It is not permissible to undertake the establishment of a fact by several presumptions; an inference cannot be based on an inference, nor a presumption on a presumption, to support a verdict; and since this case was thus established, the verdict cannot stand.”
This assignment of error fails to comply with Rule 15 of this court, and the authorities construing same. [Rusch v. Valle, 237 S. W. l. c. 112; Frick v. Ins. Co., 279 Mo. 156, 213 S. W. 854; Hanchett Bond Co. v. Palm, 220 S. W. 673.] Upon rеading the argument set out in the brief, we presume, that appellant is contending that respondent failed to make out a prima-facie case for the jury, and that the cause was submitted as to defendant‘s alleged negligence on mere conjecture, etc.
It appears from the testimony of L. C. Sevier; the superintendent of defendant, that the latter wired down to the meter in the Moore home and the consumer was authorized to do as he pleased with the current beyond the meter. The Ricker garage had been wired about one year before the trial and, hence, the jury had the right to infer that defendant was receiving compensation for the electricity used by Ricker as shown by said mеter, although the wiring of the garage was not done by defendant. Mrs. Moore simply contracted for the usual voltage of 110 for her home. It is manifest from the record that deceased was killed by the electricity which passed through the meter and from thence to the wire in the Ricker garage. It does not appear from the record that the garage wire was connected with any other current of electricity except that furnished by defendant. Hence, the jury had the right to find from the undisputed
In Conner v. Railroad, 181 Mo. l. c. 411, Fox, J., in considering a fire case, said:
“If there is substantial evidence tending to show that an accident occurred in any one of two or more ways, or any other number of ways, while the burden rests upon the plaintiff to establish such cause of the accident as would render the defendant liable, it by no means presents a case of mere conjecture; but is a question of fact, which should be submitted and determined by the triers of the facts. We only enter the field of conjecture in the absence of proof; when proof enters, conjecture disappears.”
The clear and forceful statement of the law by Judge Fox in the above case meets with our approval. The contention of appellant in respect to above assignment is untenable and overruled.
VI. We have carefully examined all the other questions raised and discussed in the briefs, and have reached the conclusion that defendant received a fair and impartial trial before an unprejudiced jury; that the verdict returned is sustained by substantial testimony; that the instructions given by the court are correct, and that no error was committed during the progress of the trial of which the appellant can legally complain.
The judgment below is accordingly affirmed.
PER CURIAM:—The foregoing opinion of RAILEY, C., is adopted as the opinion of Court in Banc. All of the judges concur, except Walker, J., who dissents.
RAILEY, C.