Benner v. Terminal R. R. Ass'n of St. Louis

• Decision Date: 30 October 1941
• Docket Number: 37598
• Citation: 156 S.W.2d 657,348 Mo. 928
• Parties: Alice Benner, Administratrix of the Estate of William H. Benner, v. Terminal Railroad Association of St. Louis, a Corporation, Appellant
• Court: Missouri Supreme Court

156 S.W.2d 657

348 Mo. 928

Alice Benner, Administratrix of the Estate of William H. Benner, v. Terminal Railroad Association of St. Louis, a Corporation, Appellant

No. 37598

Supreme Court of Missouri

October 30, 1941

Rehearing Denied December 12, 1941.

Appeal from Circuit Court of City of St. Louis; Hon. Harry F Russell, Judge.

Affirmed.

Carleton S. Hadley, Walter N. Davis and Arnot L. Sheppard for appellant.

(1) Respondent's petition pleads that appellant "negligently and carelessly caused, suffered and permitted a high and dangerous current of electricity to flow through said telephone set into the body of said William H Benner, directly thereby causing him to sustain injuries whereof he died." (a) This is a specific rather than a general charge of negligence. Kuhlman v. Water, Light & Transit Co., 307 Mo. 607, 271 S.W. 788; Morrow v. Mo. Gas & El. Co., 215 Mo. 367, 286 S.W. 106, 115; State ex rel. Macon v. Trimble, 321 Mo. 671, 12 S.W.2d 727; Sanders v. Carthage, 330 Mo. 844, 51 S.W.2d 529. (b) Because it is specific rather than general, res ipsa loquitur cannot apply. See authorities supra. (c) Because res ipsa loquitur cannot apply, respondent's Instruction 1, which is based on that principle, is erroneous. (2) Preliminary to a discussion of the sufficiency of the evidence to make a jury question are these propositions: (a) Because this action is governed by the Federal Employers' Liability Act, the sufficiency of respondent's evidence must be determined by the federal rather than the Missouri rules, even though Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, be strictly followed. O'Brien v. Western Union Telegraph Co., 113 F.2d 539; Cox v. M., K. & T. Ry. Co., 335 Mo. 1226, 76 S.W.2d 411. (b) The rule of the federal courts determining under what conditions a verdict will be directed is that "where the evidence is undisputed, or of such conclusive character that if a verdict were returned for one party, whether plaintiff or defendant, it would have to be set aside in the exercise of a sound judicial discretion, a verdict may and should be directed for the other party." Small v. Lamborn, 267 U.S. 248, 45 S.Ct. 300, 69 L.Ed. 597; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819. (c) Moreover, this rule would be applicable even though the res ipsa loquitur doctrine were involved. Dierks Lumber Co. v. Brown, 19 F.2d 732; Southern Ry. Co. v. Hussey, 42 F.2d 70; May Department Stores v. Bell, 61 F.2d 830; Gray v. B. & O. Ry. Co., 24 F.2d 671. (d) No distinction may be drawn between a prima facie showing based on the inference (presumption it is often called) created by many statutes and that created by the res ipsa loquitur theory. Yet the Supreme Court of the United States holds squarely that a statute which attempts to make such an inference evidence is unconstitutional. Western A. Ry. Co. v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884; Mobile, J. & K. C. Ry. Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78. (e) The Supreme Court of Arkansas has recognized this analogy. Heard v. Arkansas P. & L. Co., 147 S.W.2d 362. (f) The Supreme Court of Georgia has also recognized the analogy, saying that the statute did no more in a criminal case than res ipsa loquitur did in a civil case. Snead v. State, 165 Ga. 44. (g) Manifestly the inference created by the res ipsa loquitur doctrine cannot be more potent than the inference (or presumption) against suicide. Neither inference can become evidence. New York Life Ins. Co. v. Gamer, 303 U.S. 161, 171, 58 S.Ct. 500, 82 L.Ed. 726; Del Vecchio v. Bowers, 296 U.S. 280, 56 S.Ct. 190, 80 L.Ed. 229; Lincoln v. French, 105 U.S. 614; Reliance Life Ins. Co. v. Burgess, 112 F.2d 234. (3) Therefore, to create liability on appellant for a lightning death, respondent's evidence must show that the lightning reached her husband through appellant's telephone instrument. Rocap v. Bell Tel. Co., 390 Pa. 597, 79 A. 769; Sinkovich v. Bell Tel. Co., 133 A. 629; Edwards v. Cumberland County P. & L. Co., 128 Me. 217, 146 A. 700; Stecher v. Southwestern Bell Tel. Co., 295 P. 709; Chesapeake & Potomac Tel. Co. v. Noblette, 199 A. 832; Western Tel. Corp. of Texas v. McCann, 99 S.W.2d 895. (a) Kroeck's testimony that he received shocks on the telephone involved in this case, both on the night of decedent's alleged shock and in October following, was wholly incompetent and prejudicial to appellant. Schaefer v. Frazier-Davis Const. Co., 125 S.W.2d 897. (4) The verdict is excessive. Midwest Natl. Bank v. Davis, 288 Mo. 563, 233 S.W. 406.

Mark D. Eagleton and Roberts P. Elam for respondent.

(1) The doctrine of res ipsa loquitur is applicable to an action brought under the Federal Employers' Liability Act (45 U.S.C. A., secs. 51-60), as was the case at bar, if the facts of the case are otherwise such as to make that doctrine applicable. Williams v. St. Louis-S. F. Ry. Co., 337 Mo. 667, 85 S.W.2d 624; Noce v. St. Louis-S. F. Ry Co., 337 Mo. 689, 85 S.W.2d 637; Southern Ry. Co. v. Derr, 240 F. 73; Central Ry. Co. of N. J. v. Peluso, 286 F. 661; Baltimore & O. Railroad Co. v. Kast, 299 F. 413; Erie Railroad Co. v. Murphy, 9 F.2d 525; Cochran v. Pittsburgh & L. E. Ry. Co., 31 F.2d 769; Chesapeake & O. Railroad Co. v. Smith, 42 F.2d 111; Lowery v. Hocking Valley Ry. Co., 60 F.2d 78; Carpenter v. Baltimore & O. Railroad Co., 109 F.2d 375; Eker v. Pettibone, 110 F.2d 451; Terminal Railroad Assn. v. Staengel, 122 F.2d 271, decided by the United States Circuit Court of Appeals for the Eighth Circuit on July 30, 1941, and set out in full in the appendix to this brief. (2) Where, as in the case at bar, a person is lawfully using, in the usual manner, a telephone which is in the exclusive control of another, and sustains injury caused by electric shock from the telephone, the doctrine of res ipsa loquitur is applicable. Warren v. Missouri & Kansas Tel. Co., 196 Mo.App. 549, 196 S.W. 1030; Joyce v. Missouri & Kansas Tel. Co., 211 S.W. 900; Shoemaker v. Mountain States Tel. & Tel. Co., 17 F.Supp. 591; Cain v. Southern Mass. Tel. Co., 219 Mass. 504, 107 N.E. 380; Delahunt v. United Tel. & Tel. Co., 215 Pa. 241, 64 A. 515; San Juan L. & T. Co. v. Requena, 224 U.S. 89, 32 S.Ct. 399, 56 L.Ed. 680. (3) The plaintiff's petition properly pleaded a state of facts to which the doctrine of res ipsa loquitur was applicable, and alleged general negligence, rather than specific negligence, on the part of the defendant. Price v. Met. St. Ry. Co., 220 Mo. 435, 119 S.W. 932; Porter v. St. Joseph L., H. & P. Co., 311 Mo. 66, 277 S.W. 913; Briscoe v. Met. St. Ry. Co., 222 Mo. 104, 120 S.W. 1162; Bergfeld v. Kansas City Ry. Co., 285 Mo. 654, 227 S.W. 106; May Dept. Stores Co. v. Bell, 61 F.2d 830; Nettles v. Emerick, 22 F.Supp. 441; Terminal Railroad Assn. v. Staengel, 122 F.2d 271, decided July 30, 1941, and set out in the appendix to this brief. (4) The evidence in this case required submission of plaintiff's case to the jury because: (a) The defendant's evidence did not warrant the direction of a verdict in its favor, in that: It is not enough that the evidence of defendant, if true, would be sufficient to exculpate defendant, because the weight and credibility of such evidence is for the jury. Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Staudenmaier v. Johnson, 117 F.2d 397; Nielsen v. Richman, 114 F.2d 343; Clay County Cotton Co. v. Home Life Ins. Co., 113 F.2d 856; Elzig v. Gundwagen, 91 F.2d 434. The defendant's evidence, if true, did not furnish such an "explanation" of the occurrence as would necessarily preclude negligence on defendant's part. The defendant's evidence here was not "uncontradicted and unimpeached." In the light of what actually occurred -- i.e., that persons received shocks from the telephone on at least three separate occasions -- defendant's evidence is either false or self-contradictory. Warren v. Missouri & Kansas Tel. Co., 196 Mo.App. 549, 196 S.W. 1030. (b) There was ample substantial evidence in the record to establish every fact essential to a recovery by plaintiff, in that: The evidence clearly established that plaintiff's intestate, while using defendant's telephone, in the usual manner, received a violent shock "from the telephone." Whether this shock was caused by lightning or by manufactured (so-called "man-made") electricity is utterly immaterial, as it was defendant's duty to protect users of the telephone from excessive and dangerous charges of electricity from all sources. Warren v. Missouri & Kansas Tel. Co., 196 Mo.App. 549, 196 S.W. 1030; Joyce v. Missouri & Kansas Tel. Co., 211 S.W. 900. The doctrine of res ipsa loquitur being applicable, the fact that plaintiff's intestate received a shock from the defendant's telephone, while using it in the usual manner, was sufficient evidence of defendant's negligence. Authorities cited under Point (2), supra. There was ample substantial evidence that the death of plaintiff's intestate resulted from the electric shock received by him through defendant's telephone. Dr. Siebert's testimony, as to both the pathological findings at the autopsy made by him upon the body of the deceased, and his opinion, formed from those findings, that the deceased's death resulted from electric shock, was competent, direct and substantial evidence of the matters testified to by him. De Donato v. Wells, 328 Mo. 448, 41 S.W.2d 184; O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55; Phares v. Century Electric Co., 336 Mo. 961, 82 S.W.2d 91; Kimmie v. Terminal Railroad Assn., 334 Mo. 596, 66 S.W.2d 561; Cropper v. Titanium Pigment Co., 47 F.2d 1038; Corbett v. Terminal Railroad Assn., 336 Mo. 972, 82 S.W.2d 97; Pedigo v. Roseberry, 102 S.W.2d...