Benham v. McCoy

• Decision Date: 13 September 1948
• Docket Number: No. 40694.,40694.
• Citation: 213 S.W.2d 914
• Parties: BENHAM v. McCOY.
• Court: Missouri Supreme Court

213 S.W.2d 914

BENHAM v. McCOY.

No. 40694.

Supreme Court of Missouri, Division No. 1.

September 13, 1948.

Rehearing Denied October 11, 1948.

Appeal from Circuit Court, Greene County; Warren L. White, Judge.

Action by C. E. Benham against Bert L. McCoy to recover for injuries sustained when he allegedly received an electric shock while cutting a wire which defendant had assured plaintiff was carrying no electric current. For the judgment for the defendant, the plaintiff appeals.

Judgment affirmed.

E. C. Hamlin and Sesco V. Tipton, both of Springfield, for appellant.

J. Weston Miller, Theodore Beezley, Wm. P. Sanford, of the firm of Miller & Fairman, all of Springfield, for respondent.

DALTON, Commissioner.

Action for $15,000 damages for personal injuries alleged to have been sustained on account of defendant's negligence. Verdict and judgment were for defendant and plaintiff has appealed.

Plaintiff alleged "that on the 26th day of July, 1946, he was in the employment of defendant as a carpenter and general repairman; that in pursuance to this employment he was, on said date, engaged in doing general carpenter work and remodeling, under the direction and supervision of defendant, at a house owned by defendant * * *; that while so engaged, and while in the presence and under the direction and supervision of defendant, plaintiff discovered an electric cable * * * located at said house in such place that it was interfering with and impeding the progress of the remodeling and repairing * * *; that plaintiff called the presence of said electric cable * * * to the attention of defendant and suggested that said cable would have to be cut and removed; that defendant assured plaintiff that said cable was then carring no electric current and that it would be safe to cut it; that defendant then ordered plaintiff to go under the house and cut said cable * * *; that in obedience to said order plaintiff did proceed under said house to cut said cable; that contrary to the assurance of defendant, as aforesaid, and without any knowledge on the part of plaintiff, said cable did carry and was containing, at that time, a strong, powerful and dangerous electric current; that as the plaintiff proceeded to cut into * * * said cable, said electric current came in contact with plaintiff, and severely shocked and wounded plaintiff, which contact of said electric current with plaintiff directly resulted in the injuries and damages to plaintiff hereinafter mentioned. * * * That while in the employment of defendant * * * it was his (plaintiff's) duty to obey all orders of defendant which appeared to one in plaintiff's situation to be reasonable under then existing circumstances; that in cutting * * * the * * * cable * * * plaintiff relied upon defendant's superior knowledge of and familiarity with said house and the electric wiring, current and appliances contained therein, and upon defendant's assurances that said cable was carrying no electric current and that it would be safe for plaintiff to cut same." (Italics ours.)

The negligence pleaded was "that defendant knew, or by the exercise of ordinary reasonable care could and should have known, at the time he assured plaintiff that there was no current in said cable, that such was not the case but that, in truth and in fact, said cable did then contain, or might then contain, a strong, powerful and dangerous electric current, and thus might severely injure plaintiff if plaintiff attempted to cut said cable; that defendant ordered plaintiff to cut said cable when defendant knew, or by the exercise of ordinary reasonable care could and should have known, that said wire or cable then contained, or might then contain, a strong, powerful and dangerous electric current, and would place plaintiff in grave danger if plaintiff attempted to cut it * * *."

In view of the issues presented on this appeal, it is only necessary to say that plaintiff offered substantial evidence in support of the several allegations of his petition.

Defendant's answer admitted that plaintiff cut the cable, but alleged that "said cable did not at the time carry an electric charge." Defendant denied that plaintiff was working for him as an employee, and alleged that "as an independent contractor plaintiff had contracted to do certain remodeling, reconstruction and repair work on defendant's home, and was so engaged at the time mentioned in plaintiff's petition"; that plaintiff voluntarily undertook to cut the cable and assumed the risk; and that plaintiff was guilty of contributory negligence barring recovery.

Defendant's evidence tended to show that plaintiff asked what to do about the cable and defendant said "Will you cut it or do you want me to go under there (under the floor) and cut it?" Plaintiff replied, "Oh, I can cut it." Plaintiff asked defendant "if it had electricity" and defendant "told him it did not have." Soon after plaintiff went under the floor to cut the cable, he began to holler, "Turn off the current." He continued hollering, even after the main switch had been pulled. Plaintiff remained under the house, until defendant looked under and said "`What is the matter? * * * Come on out, the current is all right,' and then he came out * * * nobody helped him out." The wire that was cut was a Romex cable containing two wires, which defendant had put in for temporary use. At one time there had been a switch and a double socket, when defendant was using the cable, but at the time of the alleged injury it was not connected up. The cable was not fastened, it was not "plugged in in the basement" but was just hanging loose. Defendant inspected the cable immediately after the alleged injury, and then asked plaintiff how he felt, although defendant "knew there was no juice on that line." Defendant testified that he was "very positive" there wasn't any current on the cable plaintiff cut; and that plaintiff did not receive any electric shock at all while under the house cutting the cable. After making the inspection in the basement of the house, defendant told plaintiff that "he didn't get a shock * * * there was no juice in the wire." The evidence on the independent contractor issue will be stated later. Appellant first contends the court erred in refusing "to give, as offered by plaintiff, instructions 1 and 2." Instruction 1 submitted a finding of the alleged master and servant relationship, an order by the master, obedience by the servant and injury, and concluded as follows: "that in obedience to said order of defendant, plaintiff did cut * * * said wire or cable and in so doing was injured, and that defendant knew, or by the exercise of ordinary, reasonable care, could and should have known that said wire or cable was then carrying or might then be carrying a dangerous electric current, then your verdict must be for the plaintiff, unless you find and believe from the greater weight of the evidence that the said plaintiff knew of the danger of cutting said wire or that the danger was so glaring and obvious that a reasonably prudent person would not have undertaken to cut it." (Italics ours.)

Instruction 2 submitted a finding for plaintiff on the issue of contributory negligence, if plaintiff acted upon the assurance and supposed superior knowledge of the master "that there was no current on the wire" and if the danger was not obvious and known. The instruction began as follows: "The court instructs the jury that if they believe from the evidence that plaintiff called the attention of defendant, by whom he was employed and under whose direction and supervision he was working, to the fact that the electric cable * * * should be cut * * *." (Italics ours.)

In support of these instructions, the appellant contends that a servant, when acting under the orders of his master, is not guilty of contributory negligence, unless the danger is open and obvious and is voluntarily assumed. Duerst v. St. Louis Stamping Co., 163 Mo. 607, 617, 63 S.W. 827; Stephens v. Hannibal & St. Joseph R. Co., 96 Mo. 207, 9 S.W. 589, 9 Am.St. Rep. 336. Appellant's position is that the instructions correctly declared the law and should have been given. The court modified and gave the instructions as instructions 1A and 2A. No objection was made to the giving of the modified instructions and they were not mentioned in plaintiff's motion for a new trial. Appellant now suggests that the instructions, as modified, imposed an undue burden upon the plaintiff, but we need not consider the suggestion, because the parties have stipulated "that the sole and only points to be raised or asserted by plaintiff on plaintiff's appeal in this cause" are (1) whether the court erred in refusing to give, as originally offered by plaintiff, instructions 1, 2, and 6, and whether the court erred in giving defendant's instruction "F".

At the time instruction 1 was offered, the defendant objected to it on the ground that it was broader than the pleadings and the evidence. The objection was properly sustained. The petition alleged, and plaintiff's evidence tended to show, that the cable in question was carrying an electric current and that, when plaintiff cut into the cable he came in contact with the current, received an electric shock and as a result thereof was injured. On the other hand, defendant pleaded and his evidence tended to show that, at the time plaintiff cut the cable, the cable was not connected up with the other wiring of the house; that it was not carrying any electric current; and that plaintiff was not injured by coming in contact with an electric current.

Instruction 1, as offered by plaintiff, although covering the whole case and directing a verdict, did not require the jury to find that the wire was in fact carrying an electric current (an alternative finding was submitted) and, further, the instruction did not require a finding that such electric current came in contact with the plaintiff and caused him to be injured. These...