Ellyson v. Missouri Power & Light Co.

Decision Date02 May 1933
Docket NumberNo. 22610.,22610.
Citation59 S.W.2d 714
CourtMissouri Court of Appeals
PartiesELLYSON et ux. v. MISSOURI POWER & LIGHT CO.

Appeal from Circuit Court, Shelby County; V. L. Drain, Judge.

"Not to be published in State Reports."

Action by Leland T. Ellyson and wife, doing business under the name of Ellyson Hatcheries, against the Missouri Power & Light Company. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Oak Hunter, of Moberly, and Thomas P. Burns, of Brookfield, for appellant.

Dan R. Hughes, of Macon, and Morris E. Osburn, of Shelbyville, for respondents.

BENNICK, Commissioner.

This is an action for damages alleged to have resulted to plaintiffs' business from the interruption of the supply of electricity thereto by defendant. Tried to a jury, a verdict was returned in favor of plaintiffs, and against defendant, in the sum of $350; and, from the judgment rendered, defendant has duly appealed.

Plaintiffs are engaged in the hatchery business in the city of Clarence, in Shelby county, and have seven incubators which are operated in whole or in part by electricity supplied by defendant, which, as its name implies, is a concern engaged in the manufacture and supply of electricity, its territory covering numerous towns and cities in Northeastern Missouri. Defendant has its headquarters in the city of Brookfield, from whence its principal transmission lines lead out over the district served by it, but it also owns certain equipment in the city of Clarence, the same being the local light plant which it had acquired some years prior to this controversy, which it maintains as an emergency or standby plant.

In their petition plaintiffs charged as follows:

"Plaintiffs further state that this defendant, through its officers and agents, represented to the plaintiffs that they would furnish a continuous current of electricity for the operation of their hatcheries in the city of Clarence, and that they would keep the light plant equipment, formerly owned by the city of Clarence, in working condition, so that in case of an interruption or break of the transmission line, that the old plant at Clarence could and would be used as a reserve and thereby insure the plaintiffs a continuous supply of electric current, which was necessary for the successful operation of their business.

"Plaintiffs further state that they paid and that the defendant received the full amount charged by the defendant for electric current, and that they relied and depended upon the defendant furnishing necessary electric current to conduct their business.

"Plaintiffs further state that on the 21st day of March, 1932, at about 8:30 o'clock a. m., the electric power was cut off from their hatcheries and remained cut off until 2 o'clock p. m. of said day; than at said time there were thirty thousand eggs in their incubators in course of incubation; that the defendant failed and refused to furnish the electric current between said hours, and that the defendant did not put the old electric light plant at Clarence in operation as a reserve to furnish electric current, and the plaintiff's had no way to repair their damage."

Damage was alleged in the amount of $750, for which sum plaintiffs prayed judgment.

The answer was a general denial, coupled with the following specific allegations and affirmative defenses:

"Defendant further states that March 21, 1932, was a very stormy day; that the storm consisted of rain, sleet, and snow, attended by high wind; that the rain, sleet, and snow alternated during the day, and that the temperature was close to the freezing point during said day, and that whatever cessation, if any, of the current over defendant's lines occurred was occasioned by the storm and not by any fault of defendant.

"Defendant further says that defendant exercised all possible care to furnish current to its patrons, including the plaintiffs, on said day.

"Defendant further states that whatever loss, if any, the plaintiff's sustained to the products of their hatcheries was occasioned and contributed to by the negligence of the plaintiff's in failing to properly ventilate their equipment during the hatching process, and in selecting defective eggs which they placed in their incubators."

The reply began with the conventional denial, to which was added the following:

"Replying further, plaintiffs state that the defendant, through its officers and agents, had represented to plaintiffs that they could depend upon a continuous supply of electric current to be furnished by the defendant to operate their incubators, because the defendant would keep in reserve and in working condition the electric light plant formerly used by the city of Clarence, Missouri, which could be used in an emergency. Plaintiff's relied upon said representations, and depended upon receiving a continuous supply of electric current.

"Replying further, plaintiffs state that on the 21st day of March, 1932, the defendant's electric line had broken down, and that the electric light plant at Clarence, Missouri, was not used because it was in a defective condition, and out of repair on said date, and that said defective condition was known to the defendant, its officers and agents, or could have been known by them by the exercise of an ordinary degree of care and diligence, prior to the break in defendant's line, and in time to have been repaired, so that said plant could have been used, all of which was unknown to the plaintiffs. And that had said plant been in working order, defendant could have supplied plaintiffs with electric current.

"Therefore, plaintiffs reaffirm the allegations of their petition and pray judgment in accordance therewith."

Plaintiffs' evidence disclosed that since 1927 they had been getting their electricity from defendant for use in the operation of their six incubators which were of a type not all-electric. In the spring of 1930 they purchased a seventh incubator, which was of an all-electric type, and at the time of its installation in their hatchery they discussed the matter of the supply of current with defendant's officers and agents, who told them that they had nothing to fear, and that, if anything happened to the principal transmission line extending from the main power plant, the local plant at Clarence would take care of their needs.

Plaintiff's' evidence regarding the interruption of service corresponded to the allegations in the petition which have heretofore appeared. The testimony of plaintiff Leland T. Ellyson was that, upon his discovery of the discontinuance of service, he went over to defendant's office, and was told by the one in charge that the manager was at the local power house working on a bursted pipe, and that the reason the pipe had not been repaired sooner was that there had been no authorization from the general superintendent.

Defendant's evidence was that the break in the transmission line was the result of the formation of ice in the course of a storm; that the interruption of service was not for the length of time shown by plaintiff's evidence; that there was nothing wrong with the equipment at the local plant; and that, following the interruption of service, the local plant was put in operation within a reasonable time.

Defendant's own witnesses admitted that the local plant at Clarence had been maintained as an emergency or stand-by plant; and that certain assurances regarding the supply of service had been given Ellyson at the time he purchased his all-electric incubator.

The matters assigned as error, and preserved in the further course of the brief and argument, have to do with the refusal of defendant's requested peremptory instruction at the close of the entire case, and the submission of the case to the jury by plaintiffs' instructions Nos. 1, 2, and 3. The burden of defendant's complaint is that the evidence did not support the allegations of the petition; that the case was actually submitted upon a new and substituted cause of action set up in the reply; and that such submission was reversible error, regardless of the sufficiency of the evidence to have raised a jury question upon such new cause of action. We must therefore determine the nature of the cause of action pleaded, and whether the reply was a departure from it; and then the questions regarding the propriety and manner of the submission of the case will be more readily answerable.

Though plaintiffs might seemingly have pleaded a cause of action for damages for breach of contract, we do not think they did so, but rather that they pleaded a cause of action ex delicto for defendant's wrongful failure to have supplied current. This was an action equally available to them, and its elements were that defendant was engaged in the discharge of a public enterprise or service; that plaintiffs fell within the class of persons whom defendant was obligated to serve; that they had performed all conditions precedent entitling them to service; that defendant had wrongfully refused or neglected to supply such service to them; and that in consequence thereof they had been damaged. Of the five elements so noted, the latter three appeared in the portion of the petition which we have heretofore quoted, while defendant's status as a public utility, and the right of plaintiffs to have received service, appeared elsewhere in the...

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