Illinois Power & Light Corporation v. Hurley

• Decision Date: 26 May 1931
• Docket Number: No. 9006.,9006.
• Citation: 49 F.2d 681
• Parties: ILLINOIS POWER & LIGHT CORPORATION v. HURLEY et al.
• Court: U.S. Court of Appeals — Eighth Circuit

49 F.2d 681 (1931)

ILLINOIS POWER & LIGHT CORPORATION v. HURLEY et al.

No. 9006.

Circuit Court of Appeals, Eighth Circuit.

April 16, 1931.

Rehearing Denied May 26, 1931.

Thomas F. Doran, of Topeka, Kan., and E. Bentley Hamilton, of Peoria, Ill. (T. M. Pierce and Anderson, Gilbert & Wolfort, all of St. Louis, Mo., on the brief), for appellant.

John S. Leahy, of St. Louis, Mo. (T. J. Hoolan and Leahy, Saunders & Walther, all of St. Louis, Mo., on the brief), for appellees.

Before STONE and GARDNER, Circuit Judges, and WOODROUGH, District Judge.

GARDNER, Circuit Judge.

This is an action brought by appellees as trustees for Cain-Hurley Lumber Company, a Missouri corporation, dissolved, to recover damages on account of fire loss sustained by that company, and which it is claimed was caused by the negligence of the Madison County Light & Power Company, appellant's predecessor. The Madison County Light & Power Company was an Illinois corporation, which, subsequent to the fire and prior to the commencement of this action, became consolidated with or was absorbed by the Illinois Power & Light Corporation, appellant herein. It is conceded that the Illinois Power & Light Corporation, when it succeeded to the assets of the Madison County Light & Power Company, also assumed all the liabilities of that company.

For convenience, appellant will be referred to as defendant, and the appellees will be referred to as plaintiffs, except where it may be necessary to refer to the corporations.

At the time of the fire, the power company was supplying the lumber company with electricity for the operation of its plant, and it was claimed by the lumber company that the fire which destroyed its property resulted from the negligence of the power company in maintaining and operating its electrical installations. The light and power which was furnished the lumber company by the power company was supplied through three transformers, located near the northwest corner of the lumber yard. These transformers were located and maintained within eighteen to twenty-four inches of one of the buildings belonging to the lumber company. They rested on a platform which was fastened eight feet above the ground to two poles which extended beyond the top of the transformers to a height of twenty-eight feet from the ground. The roof of the building was a gable roof, extending from the building, and the eaves extended down to just above the transformers and at about the same height. The electric current was transmitted from the power house through primary wires attached to the top of the poles, then down through three fuse cut-outs into these transformers, whence the electricity was led into the planing mill through wires to a meter board, which was situated inside the building, and through the meter board distributed throughout the plant wherever needed. These transformers were approximately four and one-half feet high and two and one-half feet wide, and were placed on the platform above described. About two and one-half feet above the transformers were three fuse cut-outs, serving the purpose of protecting the transformers against an overload of current. The electric current, by means of the transformers, was reduced from 2,300 volts to 220 volts, and delivered to the plant at this reduced voltage through secondary wires. The power company erected, owned, and maintained the transformer installation, the secondary wires, and the meter board, and had exclusive charge and control of them, and all electricity used at the plant came over and through this equipment, including the wires and transformers, while the wiring from the meter board throughout the plant was owned and controlled by the lumber company.

The jury returned a verdict in favor of the lumber company for $100,000, and from the judgment entered thereon the power company has appealed to this court. On a former appeal to this court, from a judgment in favor of the lumber company for $120,000, the case was reversed for the insufficiency of the evidence to sustain the verdict. Illinois Power & Light Corporation v. Hurley et al. (C. C. A.) 30 F.(2d) 905. On this appeal it is urged that the court erred: (1) In overruling the defendant's motion to dismiss the action, unless the plaintiffs should show that they had available additional noncumulative evidence, pertinent and substantial and newly discovered, and unobtainable at the time of the prior trial; (2) in overruling defendant's motion to direct a verdict in its favor upon plaintiffs' opening statement; (3) in overruling its demurrer to plaintiffs' petition; (4) in permitting plaintiffs to introduce evidence of damages before introducing testimony as to the origin of the fire; (5) in denying defendant's motion for a directed verdict on the ground of (a) insufficiency of the evidence, (b) that the plaintiffs did not have capacity to maintain the action, and (c) because the lumber company had assigned to the insurance companies any claim it might have had on account of the fire loss; (6) in its instructions to the jury.

On the prior appeal this court reversed the judgment and remanded the case for further proceedings in harmony with the opinion. The action being one at law, the reversal of the judgment entitled the parties to a new trial of the action without restriction or limitation. The defendant, however, interposed a motion to dismiss, unless plaintiffs should show that they had available additional noncumulative evidence, pertinent and substantial and newly discovered, and unobtainable at the time of the prior trial. This motion seems to have been interposed on the theory that the cause had been remanded for the purpose of permitting the plaintiffs to make an application for a retrial of the action on the ground of newly discovered evidence. Counsel cite no authority for such a procedure, and we conclude that there is none. Such a procedure would seem to be in direct violation of the Seventh Amendment to the Constitution of the United States. Slocum v. New York Life Insurance Co., 228 U. S. 364, 33 S. Ct. 523, 57 L. Ed. 879; Myers v. Pittsburgh Coal Co., 233 U. S. 184, 34 S. Ct. 559, 58 L. Ed. 906; Fidelity Title & Trust Co. v. Dubois Electric Co., 253 U. S. 212, 40 S. Ct. 514, 64 L. Ed. 865. This court, in reversing the prior judgment, did not purport to place any such conditions or restrictions upon plaintiffs, and the trial court had no authority to require plaintiffs, in a preliminary hearing before the court without a jury, to prove that they had a case for the jury. The motion was not only unique, but, we think, was properly treated by the lower court as frivolous.

Defendant moved for a directed verdict, based upon the opening statement of counsel for plaintiffs, and it urges here that the court erred in denying its motion. It is doubtless within the power of the trial court to direct a verdict on the opening statement of counsel, but this should not be done unless it clearly appears from the plaintiff's opening statement that he cannot recover. The rule is only applicable where the statement clearly shows that no cause of action exists. To warrant the court in granting such a motion, it is not enough that the statement of counsel be defective, but it must affirmatively appear therefrom that no cause of action in fact exists. The rule clearly has no application in the instant case, and the court properly overruled the motion.

Contending that the court erred in overruling the demurrer to the petition, it is pointed out that the lumber company was a Missouri corporation carrying on business in Illinois and that the cause of action arose in Illinois; that the corporation on the 6th of November, 1922, withdrew from Illinois, and was dissolved in accordance with the laws of the state of Missouri, the state of its creation and domicile, on the 1st of December, 1922, and it is urged that the cause of action died with the dissolution of the company, and that the right of the company or its representatives to maintain an action thereon must be determined by the statute of the state where the cause of action arose. In support of this premise a number of authorities are cited, but investigation shows that all of them refer to a liability created by a statute. In the instant case the cause of action was not created by, nor dependent upon, any statute of the state of Illinois, but it was a common-law action for tort. The premise, on which appellant's argument is predicated, is therefore false, in that it assumes that the liability sought to be enforced was created by the Illinois statute. Confessedly, where a liability is based upon a cause of action created by statute, it carries with it all the limitations, burdens and conditions of the statute creating it. Where, however, the cause of action is one bottomed on the common law and is transitory in character, we need not look to the law of the state where the action arose for the purpose of determining the remedies applicable. The Illinois statute of limitations could, therefore, not be invoked. M'Cluny v. Silliman, 3 Pet. 270, 7 L. Ed. 676; Gregory v. Southern Pacific Co. (C. C.) 157 F. 113; Munos v. Southern Pacific Co. (C. C. A.) 51 F. 188, 190. In Munos v. Southern Pacific Co., supra, the rule is stated as follows: "`Where torts are committed in foreign countries, or beyond the territorial jurisdiction of the sovereignty in which the action is brought, the lex fori governs, no matter whether the right of action depends upon the common law or a local statute, unless the statute which creates or confers the right limits the duration of such right to a prescribed time.'"

It is to be observed that the lumber company withdrew from Illinois November 6, 1922, before the time of its dissolution. It was vested with this right of action, and at the time of its dissolution, no statutes of Illinois could be invoked as affecting this common law liability. Counsel cite the Illinois statute with...