Clark v. Union Electric Light & Power Co.

• Decision Date: 05 July 1919
• Docket Number: No. 19761.,19761.
• Citation: 213 S.W. 851,279 Mo. 69
• Parties: CLARK v. UNION ELECTRIC LIGHT & POWER CO.
• Court: Missouri Supreme Court

213 S.W. 851

279 Mo. 69

CLARK v. UNION ELECTRIC LIGHT & POWER CO.

No. 19761.

Supreme Court of Missouri, Division No. 2.

July 5, 1919.

Appeal from St. Louis Circuit Court; William A. Kinsey, Judge.

Action by Celia Clark against the Union Electric Light & Power Company. From a refusal to set aside plaintiff's involuntary nonsuit, she appeals. Affirmed.

On the proposition that the instrument set out and designated "Covenant Not to Sue" did not constitute a release discharging joint tort-feasor, but was merely a covenant not to sue, appellant cited: Ridenour v. International Harvester Co. of America, 205 S. W. 881, loc. cit. 883; McDonald v. Grocery Co., 184 Mo. App. 432, 171 S. W. 650; Arnett v. R. R. Co., 64 Mo. App. 368; Lumber Co. v. Dallas, 165 Mo. App. 49, 146 S. W. 95; Dennison v. Aldrich, 114 Mo. App. 700, 91 S. W. 1024; Laughlin v. Powder Co., 153 Mo. App. 508, 134 S. W. 116; Gilbert v. Finch, 173 N. Y. 455, 66 N. E. 133, 61 L. R. A. 807, 93 Am. St. Rep. 623; Feighley v. Milling Co., 100 Kan. 430, 165 Pac. 276; Nickerson v. Suplee, 174 Ill. App. 136, loc. cit. 139; Berry v. Pullman Co., 249 Fed. 816, 162 C. C. A. 50, L. R. A. 1918F, 358; Kropidlowski v. Pfister & Vogel Leather Co., 149 Wis. 421, 135 N. W. 839, 39 L. R. A. (N. S.) 509; Atchison, T. & S. F. Ry. Co. v. Classin (Tex. Civ. App.) 134 S. W. 358; J. Rosenbaum Grain Co. v. Mitchell (Tex. Civ. App.) 142 S. W. 121; El Paso & S. W. Ry. Co. v. Darr (Tex. Civ. App.) 93 S. W. 169; Bloss v. Plymale, 3 W. Va. 393; Matthews v. Chicopee Mfg. Co., 26 N. Y. Super. Ct. 711; Carey v. Bilby, 129 Fed. 203, 63 O. C. A. 361; 34 Cyc. pp. 1085-1087; Ridgeway v. Sayre Electric Co., 258 Pa. 400, 102 Atl. 123, L. R. A. 1918A, 901, Ann. Cas. 1918D, 1.

On the proposition that such instrument constituted a release and not a mere covenant not to sue respondent cited: Dulaney v. Buffum, 173 Mo. 1, 73 S. W. 125; Hubbard v. Railroad, 173 Mo. 249, 72 S. W. 1073; Chicago Herald Co. v. Bryan, 195 Mo. 587, 92 S. W. 902; McBride v. Scott, 132 Mich. 176, 93 N. W. 243, 61 L. R. A. 445, 102 Am. St. Rep. 416, 1 Ann. Cas. 61.

Plaintiff sues for damages in the sum of $10,000 for the death of her husband, Theodore C. Clark, which was alleged to have been caused by the negligence of the plaintiff on the 7th day of November, 1914.

At the close of plaintiff's evidence at the trial in the circuit court of the city of St. Louis, plaintiff took an involuntary nonsuit, with leave to move to set same aside. The court overruled the motion to set aside the nonsuit and plaintiff duly perfected an appeal to this court. The facts are sufficiently summarized in the following quotations which we tape from the respective statements.

From appellant's statement we quote as follows:

"Deceased was in the employ of the Southwestern Telegraph & Telephone Company (hereinafter called the Telephone Company) as trouble man, his duties consisting of locating and remedying wire trouble on the lines of his employer. On this date the defendant, Union Electric Light & Power Company (hereinafter called the Light Company), the Telephone Company, and the city of St. Louis were maintaining their respective wires upon, poles belonging to the Telephone Company; there being a joint user of said poles on what was known as the Manchester line of the Telephone Company. The Telephone Company maintained wires upon, two cross-arms above the cross-arms and wires of the Light Company. There was a lead cable running from the round to a cable box in the midst of the wires, which cable ran alongside of and perpendicular with the pole.

"On the date mentioned deceased was ordered by the trouble tester of the Telephone Company to go out on the Manchester line and locate and correct what appeared to be a ground on one of the wires of the Telephone Company. A test at the station with instruments used for that purpose showed that the wire was not crossed with the wires of the Light Company or with any other, but that the line was simply grounded. Deceased went out on the line and was Upon the pole located at Taylor and Manchester avenues of the Manchester line of the Telephone Company when he was seen to fall from amongst the wires to the ground, a distance of from 30 to 36 feet. He was dead when eyewitnesses reached him. He had an electric burn in the palm of his left hand and his neck was broken. He was wearing canvas gloves at the time. It was necessary for deceased to climb through the wires of the Light Company to get to the wires of the Telephone Company, the space between the Light Company's wires being from 32 to 34 inches. The Light Company was maintaining at the time certain wires on both of their cross-arms, which were carrying a heavy current, ranging from 2,200 to 4,400 volts, sufficiently heavy to be dangerous to human life, and other wires of the Light Company on that pole were neutral, carrying no current at all. The wires of the city and of the Telephone Company were allow voltage, and not carrying a heavy or dangerous current. The insulation on the high-tension wires of the defendant was off the wires near the pole, and there were marks on the bare space of one of them, showing that a foreign body had come in contact with it at that point and that the current of electricity had been diverted from the wire into the foreign body. This mark was not upon the wire a short time before, but was there a short time after Clark was killed."

One of plaintiff's witnesses testified as follows: That the Telephone Company had a rule whereby the men were supposed to wear rubber gloves where they were handling wires which are in contact with or in close proximity with high-tension wires, but that it was not the custom of the telephone employés to observe that rule universally, but that if they were working on high-tension wires they would observe the rule. In working With the telephone wires they would not generally use rubber gloves; that when a wire gets crossed with an electric light wire it has the same voltage as the electric light wire, and then the precaution is taken to protect the person from shock.

The following quotations are taken from respondent's statement:

"At that time the Telephone Company had provided, among other benefits, a death benefit plan for compensation to the widow or dependents of employés killed while in the service of the company. The original fund for the creation of this plan was furnished by the Telephone Company, and it obligated itself to make up any deficiency in the fund at the end of the year, providing that such deficiency did not exceed more than a certain percentage of the total wages paid to its employés during the previous year. The employés contributed no money, or made no payments to this fund, nor did they pay any premiums or assessments. One of the provisions of the plan was that in case on accident resulting in the death of an employé, which entitled his beneficiary or beneficiaries to benefits under the regulations, he or they might elect to accept such benefits, or to prosecute such claims at law as he or they might have against the company, but that if an election was made to accept the benefits such election was required to be in writing; and it was further provided that the company be released from all claims and demands which the beneficiaries might have against the Telephone Company, otherwise than under the regulations, on account of such accident. Under the plan, these benefits were to be paid irrespective of the question of liability, but an election had to be made.

"A demand was made on the employer for damages, and it appears that the Telephone Company denied liability, and thereafter Mrs. Clark, the plaintiff, received from the Telephone Company the sum of $2,760, and executed an instrument in writing,...