Cole v. Empire Dist. Electric Co.

• Decision Date: 20 December 1932
• Parties: Homer Cole and Paul Stelts, Appellants, v. The Empire District Electric Company, a Corporation
• Court: Missouri Supreme Court

55 S.W.2d 434

331 Mo. 824

Homer Cole and Paul Stelts, Appellants, v. The Empire District Electric Company, a Corporation

Supreme Court of Missouri

December 20, 1932

Appeal from Jasper Circuit Court; Hon. Grant Emerson Judge.

Reversed and remanded.

R S. Mallett, Grover C. James and Ray Bond for appellants.

(1) The court erred in not permitting the expert witness Roth to answer the hypothetical question propounded to him, asking for his opinion as to the cause of the fire. O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55; Rock v. Keller, 278 S.W. 767; Morton v. St. L.-S. F. Ry Co., 20 S.W.2d 45; Totten v. Smith Bros., 3 S.W.2d 744; Coy v. Dean, 4 S.W.2d 839; Chicago, B. & Q. Railroad Co. v. Conway, 29 F.2d 552; Illinois Power & Light Corp. v. Hurley, 49 F.2d 685. (2) It is not necessary to establish negligence or any other ultimate fact in a lawsuit by direct or positive testimony, but any ultimate fact may be established by facts and circumstances from which a jury may reasonably infer the existence of such ultimate fact; and in the present case, there was sufficient evidence to require the submission of the issue of negligence charged against the defendant to a jury for determination. 45 C. J. 1262; Woodward v. Railroad Co., 295 S.W. 98; Eichholz v. Poe, 217 S.W. 284; Illinois Power & Light Corp. v. Hurley, 49 F.2d 681; Fink v. Railroad, 161 Mo.App. 327; Blanton v. Dodd, 109 Mo. 75; Hoffman v. Peerless White Lime Co., 296 S.W. 771; Scott v. Smelting Co., 187 Mo.App. 355; Compton v. Louis Rich Const. Co., 287 S.W. 480; Adams v. Street Railway Co., 174 Mo.App. 5; Copehardt v. Murta, 165 Mo.App. 63; Pidgeon v. United Rys. Co., 154 Mo.App. 32; Lutgen v. Standard Oil Co., 287 S.W. 885; Nomath Hotel Co. v. Gas Co., 300 Mo. 240, 253 S.W. 975; Daly v. Pryor, 197 Mo.App. 583; Pfeifer v. Supreme Tribe of Ben Hur, 191 Mo.App. 51; Steffens v. Fisher, 161 Mo.App. 392; Winkle v. Dry Goods Co., 132 Mo.App. 665; Derrick v. Harwood Elec. Co., 111 A. 48; Pierce v. Telephone & Telegraph Co., 173 P. 871; Eastern Okla. Light & Power Co. v. Hare, 286 P. 769; Newman v. Water Power Co., 156 P. 111; Davidson v. Alabama Power Co., 82 So. 91; Prestonsburg Superior Oil Gas Co. v. Geo. W. Vance, 215 Ky. 77, 284 S.W. 405, 47 A. L. R. 483; Gillespie v. Monarch Carbon Co., 98 W.Va. 481, 128 S.E. 316.

A. E. Spencer, Jr., and A. E. Spencer for respondent.

(1) Appellants' first proposition is that the court erred in refusing to permit their expert witness to answer the hypothetical question and to state what in his opinion caused the fire. Notwithstanding the rule declared in O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55, as to medical experts, and which rule was substantially stated to be a rule of necessity under the conditions there obtaining, this rule has not been extended, by any decision counsel have been able to find, so as to authorize an expert witness, in a case like the one at bar, to have submitted to him a synopsis of all the evidence in a case, in the form of a hypothetical question, and then to answer from this the ultimate question of liability which is to be determined by the jury. The expert opinion permitted in the O'Leary case and the decisions following it, upon which appellants rely, did not by any means go this far and permitted only an opinion by a medical expert as to the cause of the physical condition of the injured person, as between injury and disease. Busch & Latta Paint Co. v. Woermann Const. Co., 276 S.W. 621, 310 Mo. 419; Kunkel v. Griffith, 29 S.W.2d 66; McAnany v. Henrici, 238 Mo. 103, 141 S.W. 633; Turner v. Harr, 114 Mo. 335, 21 S.W. 737; Hild v. St. Louis Car Co., 259 S.W. 838; Kaw Feed & Coal Co. v. Railway Co., 129 Mo.App. 504; Pioneer Lumber Co. v. Van Cleave, 279 S.W. 241. (2) The second contention made by appellants divides itself into two parts. First, they say it is not necessary to establish negligence or any other ultimate fact in a law suit by direct or positive testimony, but any ultimate fact may be established by facts and circumstances from which a jury may reasonably infer the existence of such ultimate fact. There is no question about the correctness of this, as an abstract proposition. Second, they say that in the present case there was sufficient evidence to require the submission of the issue of negligence charged against the defendant to a jury for determination. With this we take issue and assert that the trial court was right in refusing to submit the case to the jury. Also that no case cited by respondent sustains their claim. State ex rel. Mo. Pub. Utilities Co. v. Cox, 298 Mo. 427, 250 S.W. 551; Wood v. Cumberland Telephone & Telegraph Co., 151 Ky. 77, 151 S.W. 29; Consolidated Electric Light & Power Co. v. Koepp, 64 Kan. 735, 68 P. 608; National Fire Ins. Co. v. Denver Consolidated Electric Co., 16 Colo.App. 86, 63 P. 949.

OPINION

Frank, P. J.

Action by appellants, plaintiffs below, to recover damages for the loss by fire of a garage building and contents alleged to have been caused by the negligence of defendants. The trial court directed a verdict for defendant, whereupon plaintiffs took an involuntary nonsuit with leave to move to set the same aside. Later the motion to set aside the nonsuit was overruled and plaintiffs appealed.

The evidence favorable to plaintiff tends to show the following facts:

Plaintiffs owned a garage building in the town of Seneca in which they operated a garage and repair shop. Defendant, a corporation, was engaged in furnishing and selling electric current for lighting and power purposes to the residents of the town of Seneca, and furnished electric current to plaintiffs for lights and power in their said garage building. The building had a frontage of fifty feet, north and south, and a depth of 125 feet, east and west. The main part of the building was 50 by 100 feet facing on the business street and was constructed of stone with ship-lap roof. At the rear of the stone building and connecting therewith was a frame structure twenty-five feet in depth and of the same width as the stone building. The floor of both buildings was all concrete. The walls of the frame building were constructed of ship-lap covered with sheet metal. The inside walls and ceiling were covered with tar building paper. The stone building was used as a garage and the frame building as a repair shop. Electric power for one motor was used from the power circuit, and electric current from the light circuit was used for lighting, and the operation of some small motor driven tools. The motor on the power circuit operated an air compressor. The poles and lines of defendant company were located in the alley about 30 feet from the rear of plaintiffs' building, and a transformer from which the wires were extended into plaintiffs' building was on a pole in this alley.

Defendant company, was making a change from a 25-cycle to a 60-cycle system. On and prior to December 12, 1926, four electric wires extended from the lines in the alley into plaintiffs' garage through the rear wall of the frame building, entering ten or twelve feet from the ground where they were attached on the inside of the said wall to two meters. One meter was used for the power circuit of 220 volts and the other for the light circuit of 110 volts, wires being connected with each meter, from which they extended into various parts of the building. A strip approximately six inches wide and about eighteen inches long had been removed from the sheet iron covering the rear wall of the frame building so as to permit the wires to pass through holes in the wall into the room; and these four wires passed through porcelain insulators in the wall. The two meters and one switch were attached to ordinary pine boards nailed to the rear wall just below where the wires entered. The switch was attached to the north end of this board and just above the switch there was a fuse for each of the two wires on the light circuit. The two wires ran from the switch to the light meter, which was next attached to the board, and from there extended throughout the building for lighting purposes, and for the operation of small tools attached to light sockets. The only other equipment on this board was the power meter which was fastened at or near the south end of the board. The other wires came in from the pole line through the board wall and directly into the power meter, and extended from the power meter to a one and one-half h. p. two-phase motor located near the northeast corner of the stone building, just inside of the east wall. There was no fuse nor switch between the meter and the outside. Immediately above this motor there was a switch and also a fuse on each line. The tar paper was tacked on the top side of this board, about four inches from the meter.

On December 12, 1926, a foreman and other employees of defendant replaced this motor with a sixty cycle motor of the same horse-power, said replacement being made necessary by reason of changing the electrical system from twenty-five cycle to sixty cycle. At the same time they installed an additional wire extending from the lines in the alley into and through the rear wall of the frame building and in close proximity to the wires which were installed and in use prior to that time. They bored a hole through the wood wall and the tar paper for the purpose of carrying this additional wire to the inside. The wire was insulated, but was not run through any porcelain or other insulator and there was nothing between the wire and the wood wall and tar paper and it came in close contact with both. This wire was connected with and attached to the power meter without any switch or fuse being installed before it reached the meter. At that time the foreman stated to one of the plaintiffs that...