Atherton v. Kansas City Power & Light Co.

• Decision Date: 12 May 1947
• Docket Number: 39874
• Citation: 202 S.W.2d 59,356 Mo. 505
• Parties: Lois H. Atherton v. Kansas City Power & Light Company, a Corporation, Appellant
• Court: Missouri Supreme Court

202 S.W.2d 59

356 Mo. 505

Lois H. Atherton v. Kansas City Power & Light Company, a Corporation, Appellant

No. 39874

Supreme Court of Missouri

May 12, 1947

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Affirmed.

Ludwick Graves, Irvin Fane, James H. Ottman for appellant Johnson, Lucas, Graves & Fane of counsel.

(1) The condition and danger existing at the substation was "known and visible" to Atherton and plaintiff can not rely upon defendant's alleged failure to warn thereof. Defendant was under no duty to warn Atherton. Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Main v Lehman, 294 Mo. 579, 243 S.W. 91; Goetz v. Hydraulic Press Brick Co., 320 Mo. 586, 593, 9 S.W.2d 606, 60 A.L.R. 1064; Giles v. Mound Ridge Milling Co., 351 Mo. 568, 173 S.W.2d 745; Mullen v. Sensenbrenner Merc. Co., 260 S.W. 982, 33 A.L.R. 176. (2) Atherton was guilty of contributory negligence. Cash v. Sonken-Galamba Co., 322 Mo. 349, 17 S.W.2d 927; Stein v. Battenfeld Oil & Grease Co., 327 Mo. 804, 39 S.W.2d 345. (3) If there existed a duty to warn, there must be substantial evidence of a breach of that duty, i.e., a failure to warn, to entitle plaintiff to recover. Such breach of duty, i.e., failure to warn, can not be based on inference or speculation. State ex rel. City of Macon v. Trimble, 231 Mo. 671, 12 S.W.2d 727; Coble v. St. Louis-S.F. Ry. Co., 38 S.W.2d 1031; Clayton v. May Dept. Stores Co., 184 S.W.2d 735; Davidson v. Missouri Orpheum Corp., 236 Mo.App. 1025, 161 S.W.2d 707; State ex rel. Missouri Public Utilities Co. v. Cox, 298 Mo. 427, 250 S.W. 551. (4) Evidence of past action by an individual or a corporation is relevant as bearing upon the intent with which they later perform a similar action. Russell v. Frank, 348 Mo. 533, 154 S.W.2d 63; Powell v. St. Louis-S.F.R. Co., 229 Mo. 246, 129 S.W. 963; Davis v. Vories, 141 Mo. 234, 42 S.W. 707. (5) The defendant, by letter sent to Whitaker Battery Supply Company on October 3, 1932 (Exhibit A), had fulfilled its duty to warn, if any, and in addition, Atherton, production manager of Whitaker Battery Supply Company, was charged with the knowledge of the warning contained in said letter. Kregain v. Blake, 292 Mo. 498, 239 S.W. 495; 19 C.J.S., p. 109; 39 Am. Jur. 238.

John G. Madden, Ralph M. Russell and Frank Brockus for respondent; Madden, Freeman, Madden & Burke of counsel.

(1) Jennings was under a duty to warn Atherton of the danger from the energized lightning arresters. Clark v. Railroad, 234 Mo. 396; Vogt. v. Wurmb, 318 Mo. 471, 300 S.W. 278; Mullen v. Merc. Co., 260 S.W. 982; Main v. Lehman, 294 Mo. 579, 243 S.W. 91; Cash v. Sonken-Galamba Co., 17 S.W.2d 927; 45 C.J. 644, et seq; Dillman v. Burke, 158 Mo.App. 137, 138 S.W. 57; 45 C.J. 653, 646; Finer v. Nichols, 175 Mo.App. 525; Bartlett v. Taylor, 174 S.W.2d 844. (2) Atherton was not guilty of contributory negligence. American Laboratory v. Glidden, 59 S.W.2d 53; Pulsifer v. Albany, 47 S.W.2d 233; Unrein v. Hide Co., 240 S.W. 924; Stewart v. Gas Co., 241 S.W. 909. (3) There was substantial evidence of the failure to warn Atherton on the part of Jennings. (4) The trial court did not err in excluding Exhibit A; the circumstance that a cautionary letter had been mailed the previous year did not bear upon appellant's intent in mailing to Atherton, after it knew he was dead, another cautionary letter warning him of the danger which had killed him; and, in any event, no such theory of admissibility was disclosed to the trial court. Edmonston v. Jones, 96 Mo.App. 83; Fearey v. O'Neill, 149 Mo. 467; Smith v. Mills, 134 S.E. 145; Fitzgerald v. Young, 113 N.E. 777; Sunmount Co. v. Nagel, 236 P. 505; Capital Garage v. Powell, 127 A. 375; Hatcher v. Lammons, 112 So. 120; Flowers v. Bush, 254 F. 519; Booth Granite Co. v. Heugel, 22 S.W.2d 605; Scanlon v. Kansas City, 28 S.W.2d 84; Sinclair v. Wyatt, 149 S.W.2d 353; Nulsen v. Chemical Co., 145 S.W.2d 410; Duffley v. McCaskey, 134 S.W.2d 62; Scotten v. Metropolitan, 81 S.W.2d 313; Canton v. Bank, 92 S.W.2d 595; Northrop v. Diggs, 146 Mo. 145; Hill Bros. v. Bank, 100 Mo.App. 230. (5) Neither of the grounds of admissibility now urged were advanced to the trial court, and as a result, they can not be now considered upon appeal. Long v. Thompson, 183 S.W.2d 96, 353 Mo. 531. (6) The contention that Atherton was, as a matter of law, charged with constructive notice of the contents of Exhibit A directed to a corporate officer, when Atherton was in California, and when Atherton was a mere employee and not shown even to have had access to the corporate files. 19 C.J.S. 110; 3 Fletcher's Cyclopedia of the Law of Private Corporations, Rev. and Perm. Ed., sec. 837; Bank v. Hutton, 224 Mo. 42; Doane v. King, 30 F. 106; Pitman v. Walker, 203 P. 739; Dodo v. Stocker, 219 P. 222. (7) The contention that appellant by its 1932 letter, allegedly warning Whitaker Battery Supply Company, discharged its duty to Atherton in 1933. Dobson v. Elevator Co., 26 S.W.2d 942; Dean v. Cleveland Ry., 65 Ind.App. 255; Jacowicz v. Delaware Railroad, 87 N.J. Law 273, 92 A. 946; General Box v. Utilities, 55 S.W.2d 442.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

The Kansas City Power & Light Company, a corporation, appeals from a judgment for $ 10,000 in favor of Lois H. Atherton for the alleged wrongful death of Harold S. Atherton, her husband. The suit was timely instituted. Plaintiff's case was submitted on the ground defendant was guilty of common law negligence in failing to warn Atherton of certain danger. Defendant contends that it was not guilty of actionable negligence; that there was no substantial evidence of a failure to warn; that Atherton was guilty of contributory negligence as a matter of law; and that the court erred in refusing to admit a certain letter offered in evidence by defendant. The issues involving a case made call for the facts favorable to plaintiff.

Harold S. Atherton, aged 39, died September 18, 1933, as a result of coming in contact with high voltage electric current on the platform of the substation of the Whitaker Battery Supply Company (for convenience hereinafter designated Whitaker) in North Kansas City, Missouri. Atherton entered Whitaker's employ in 1925 as a salesman. At the time of his death he was production manager -- over-seeing the production of the foundry and assembly, checking the operations and cost records and having general supervision over the substation. He had earned up to $ 5,000 annually. He had graduated from Pratt Institute, Brooklyn, N.Y. He received no degree as an engineer, the course of study covering only two years. He was experienced in mechanical engineering, but was inexperienced in electricity. (There was evidence to the contrary and much of defendant's argument is based thereon.) A witness testified that Whitaker hired an electrician when there was occasion for electrical work and that Atherton had nothing to do with it.

In 1931 Whitaker contracted with defendant for the construction of an outside substation. This substation was approximately 8 by 12 feet at the base and 21-1/2 feet above the ground. It carried 13,200 volts and had six warning signs of the high voltage. About 9-1/2 feet above its base was a platform of "arrowhead" grating, having spaces between the metal strips of 3/4 ths of an inch. It was exposed to the weather and there was testimony that the wind and rain sufficiently cleaned this type of platform. The platform had a guard rail about 2-1/2 to 3 feet from the lightning arresters. As we read this record, the nearest point of the platform to the nearest point of a lightning arrester (there being three parallel with the platform) was put at 2-1/2 feet and also at 9 inches. There was a switch at the extreme top of the substation, known as the "pole top switch" or "main gang line switch." We understand opening this switch would de-energize the Whitaker circuit but that the lightning arrester circuit would remain unaffected.

The testimony established that if a substation had a "disconnect" it could cause an "outage" or an interruption of service to the customer and to all other users on that "series." Defendant inspected all substations periodically, consumer-owner as well as company owned, for the benefit of the owner of the substation that it be maintained in proper condition and for the benefit of the consumers on the line and the company that electric service and the sale of electric energy not be interrupted. The substation platform was safe enough for an experienced man but dangerous for one not experienced. After inspecting a consumer-owned substation, defendant's inspector would contact the consumer's representative in charge of the substation and make his recommendations. A letter was always written specifying the recommendations and carried appropriate safety precautions.

Defendant's inspector Jennings first inspected the Whitaker substation in September, 1932. At that time Atherton was in Oakland, California, and the matter was taken up with T. H. Stuver, Whitaker's secretary and Atherton's superior officer. Jack Liebst, who was Atherton's assistant, performed the maintenance work then recommended. As disclosed by the record, Atherton's connection with the substation was limited to participating in the conferences connected with the contract for its construction, to placing an order in April, 1931, for an oil circuit breaker and accessories and ordering, in February, 1932, some oil for the transformer and supervising putting the oil in to bring it up to the level mark on the gauge.

On Saturday, September 16, 1933, Jennings again inspected the Whitaker substation, finishing at about the noon hour. He went to Whitaker's main office and, after a short delay Atherton, who was in the building, came...