Glasco Elec. Co. v. Union Elec. Light & Power Co.

• Decision Date: 12 June 1933
• Docket Number: No. 30753.,30753.
• Citation: 61 S.W.2d 955
• Court: Missouri Supreme Court
• Parties: GLASCO ELECTRIC COMPANY, Appellant, v. UNION ELECTRIC LIGHT & POWER COMPANY, a Corporation.

61 S.W.2d 955

GLASCO ELECTRIC COMPANY, Appellant, v. UNION ELECTRIC LIGHT & POWER COMPANY, a Corporation.

No. 30753.

Supreme Court of Missouri, Division One.

June 12, 1933.^*

Appeal from Circuit Court of City of St. Louis. — Hon. John W. Calhoun, Judge.

REVERSED AND REMANDED.

Leahy, Saunders & Walther and J.L. London for appellant.

(1) The court erred in giving and reading to the jury defendant's Instruction 4, which reads as follows: "The court instructs the jury that even though you find and believe from the evidence that plaintiff suffered damage by reason of a fire caused by the emission or escape of electric current, sparks, fire or flame from electrical apparatus owned and exclusively controlled and maintained by defendant, yet those facts alone are not sufficient to warrant you in returning a verdict for plaintiff in this case. Unless you also find and believe from the evidence that defendant was guilty of negligence, and that such negligence was the proximate cause of said fire, your verdict must be in favor of the defendant." McCloskey, by etc., v. Koplar, 46 S.W. (2d) 557; Sweeney v. Ewing, 228 U.S. 233; San Juan v. Light Co., 224 U.S. 89; Von Trebra v. Gas Co., 209 Mo. 648; Simmons v. Commonwealth Edison Co., 203 Ill. App. 367; Quincy Gas Co. v. Summitt, 123 Ill. App. 647; 20 C.J. 381, 382; Price v. Railroad, 220 Mo. 435; Solomon v. Moberly Light & Power Co., 303 Mo. 622. (2) The court erred in giving and reading to the jury defendant's Instruction 5, which reads as follows: "The court instructs the jury that the evidence of the absent witness, Edward J. Stanton, as contained in and read to you from the affidavit in support of defendant's application for a continuance, is entitled to and should be given the same weight and credit that you would give it if said witness were personally present and testified to the same facts before you." Anderson v. White, 210 Mo. App. 283; Jones v. Ry. Co., 253 S.W. 739; Schertz v. John Hancock Mut. Life Ins. Co., 251 S.W. 93. (3) The court erred in giving Instruction 6, reading as follows: "The court instructs the jury that you are the sole judges of the credibility of the witnesses and of the weight to be given their testimony. In determining such credibility and weight you may take into consideration the character of the witness, his manner on the stand, his interest, if any, in the result of the trial, his relation to or feeling towards the parties to the suit, the probability of his statements, as well as all the other facts and circumstances given in evidence." Hansberger v. Electric Ry. L. & P. Co., 82 Mo. App. 576. (4) The court erred in permitting the defendant to show that plaintiff had insurance and had received certain moneys from insurance companies. Adelphia Hotel Co. v. Providence Stock Co., 277 Fed. 909; Brooks v. Menaugh, 284 S.W. 805; Day v. Railroad, 114 N.E. 725, 225 Mass. 538; Multnomah Co. v. Williamette T. Co., 49 Ore. 222; 22 C.J. 180, 182. (5) The court erred in permitting the defendant to show the interest of the insurance companies. Sexton v. Anderson, 234 S.W. 358; Hartford Fire Ins. Co. v. Railroad Co., 74 Mo. App. 106; Brooks v. Menaugh, 284 S.W. 805; Adelphia Hotel Co. v. Providence Stock Co., 277 Fed. 909; Day v. Railroad, 114 N.E. 725, 225 Mass. 538; Multnomah County v. Williamette T. Co., 49 Ore. 222; 22 C.J. 180, 182. (6) The court erred in permitting counsel for the defendant to argue to the jury about any matter with reference to the insurance companies or to the payment by the insurance companies of any money, or as to the settlement, since a settlement might be in full and yet might not cover the plaintiff's loss, as in the case at bar. Adelphia Hotel Co. v. Providence Stock Co., 277 Fed. 909; Brooks v. Menaugh, 284 S.W. 805; Day v. Railroad, 114 N.E. 725, 225 Mass. 538; Multnomah Co. v. Williamette T. Co., 49 Ore. 222; 22 C.J. 180, 182. (7) The court erred in permitting counsel for the defendant to read the deposition of E.J. Stanton, which was not an explanation of any evidence read by plaintiff. Peppers v. Ry. Co., 295 S.W. 757; Diederick v. Mo. Iron & Metal Co., 9 S.W. (2d) 828; Shull v. Kallauner, 300 S.W. 554. (8) The court erred in permitting defendant on voir dire to ask questions with reference to the fire insurance companies. Brooks v. Menaugh, 284 S.W. 805; Sexton v. Anderson Electric Power Co., 234 S.W. 360; Hartford Fire Ins. Co. v. Railway, 74 Mo. App. 106.

Theodore Rassieur, George M. Rassieur and John P. McCammon, Jr., for respondent.

(1) Plaintiff abandoned the res ipsa liquitur theory by offering evidence and instructing on specific negligence only. Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W. (2d) 21; Sanders v. Carthage, 51 S.W. (2d) 529; Nahorski v. Terminal Ry., 310 Mo. 227, 274 S.W. 1025; Eversole v. Railroad Co., 249 Mo. 523; Denkman v. Prudential Fixture Co., 289 S.W. 591; Wallace v. Burkhart Mfg. Co., 319 Mo. 52, 3 S.W. (2d) 387. (2) Instruction 4 is a correct statement of law as applied to the facts in this case and was properly given. Stolovey v. Fleming, 320 Mo. 946; Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W. (2d) 21; Sanders v. Carthage, 51 S.W. (2d) 529. (3) Under the facts the giving of Instruction 5 was proper. (a) The plaintiff admitted that the witness Stanton would, if present, testify to the facts stated in the affidavit for continuance. (b) The deposition of the absent witness Stanton did not in anywise contradict the facts stated in the affidavit, but, on the contrary, supported them. Jones v. Ry. Co., 253 S.W. 737, 287 Mo. 64, 228 S.W. 780; Empire Plow Co. v. Berthold & Jennings, 237 S.W. 137. (4) Instruction 6 was a proper instruction and no error was committed in giving and reading said instruction. Eikenberry v. St. Louis Transit Co., 103 Mo. App. 442. (5) Appellant's Point 4 cannot be considered, since there is no assignment of error to support it. Cox v. Orr, 14 S.W. (2d) 440; Supreme Court Rule 15; Sec. 1060, R.S. 1929. (6) The examination of the jury panel as to their connection with or interest in the insurance companies involved in this action was proper. Wendel v. City Ice Co., 22 S.W. (2d) 215; Maurizi v. Western Coal & Mining Co., 11 S.W. (2d) 268; Smith v. Star Cab Co., 19 S.W. (2d) 467.

FERGUSON, C.

Plaintiff brought this action to recover damages, in the sum of $14,364.05, on account of a fire loss, sustained by it, which is alleged to have been caused by the negligence of defendant, Union Electric Light & Power Company. Upon a trial, by jury, in the Circuit Court of the City of St. Louis, the verdict and judgment was for defendant and plaintiff appealed.

The petition charges general negligence, without averments of specific negligence, and plaintiff, appellant here, claims that under the pleading and proof, adduced by it, the case is a proper one for the application of the res ipsa loquitur doctrine. Defendant, respondent, insists that conceding the petition does charge general negligence yet plaintiff's "evidence tends to show specific negligence" and for that reason the doctrine of res ipsa loquitur does not apply.

Appellant company occupied a building fronting on the west side of North Eleventh Street in the city of St. Louis and was engaged in the business of selling electric light fixtures and appurtenances and other electrical equipment and appliances. A large stock of such merchandise was stored in the basement of the building. Appellant purchased electricity from both the defendant, Union Electric Light & Power Company and the Laclede Gas Light Company. Electricity was transmitted and supplied to the building through four cables entering the basement. Two of these cables were owned and maintained by the Laclede Company and two by defendant Union Electric Company. The cables were carried in iron pipes, referred to as laterals, under ground from the main line cables in Eleventh Street and the service box at that point, for a distance of about forty feet, and through the east wall of the basement. Emerging from the laterals the cables extended, in the open, within the basement and near the east wall, to fuse boxes and meters. The fuse boxes were owned, maintained and controlled by appellant. The respective iron pipes or laterals and the cables were constructed, installed, and maintained by, and were under the exclusive control of, the Laclede Company and Union Electric Company. The Laclede Company maintained one lateral through which its two cables entered the basement and the Union Electric Company two laterals, each carrying a cable and entering through the east basement wall a few inches north of the Laclede lateral; the openings of the three laterals being within "a radius of about eight inches" so that the four cables as they emerged therefrom were closely grouped. With this preliminary statement undertaking to depict the manner in which these cables carrying electricity into the building were arranged we look to the evidence on the part of plaintiff, appellant. The president of the plaintiff company testified that on September 9, 1924 (at approximately one o'clock P.M.), an employee notified him that there was trouble in the electric wires in the basement; that he proceeded to investigate; that at the place where the cables entered the basement through the east wall there was "sputtering," electricity was "arcing" and an "electrical flame" burning; that the fuse box was intact and the flame was then wholly confined to the point mentioned; that he ran outside the building and gave an alarm by "hollering fire," and that as he "went out of the building the cover of the manhole" of the service box in the street "raised about two feet ... it appeared to be an explosion." A fire station was located within 150 feet of the building and firemen immediately responded to the alarm. A fire captain testified that he went into the basement and "went within 25 or 30 feet of the east wall;" that an electrical flame was burning ...