Heath v. Home Telephone Co.
| Decision Date | 04 December 1930 |
| Docket Number | No. 28402.,28402. |
| Citation | 33 S.W.2d 118 |
| Parties | MARJORIE HEATH v. SALISBURY HOME TELEPHONE COMPANY and CITY OF SALISBURY, Appellants. |
| Court | Missouri Supreme Court |
Appeal from Macon Circuit Court. — Hon. V.L. Drain, Judge.
REVERSED AND REMANDED.
Matthews & Jones and Lamb & Lamb for appellant Salisbury Home Telephone Company; Franklin & Son and Roy McKittrick for appellant City of Salisbury.
(1) The trial court should have sustained the motion for judgment because it appeared from the statement that respondent had heard of Prine within seven years prior to the trial. See cases cited below. (2) The evidence showed Charles L. Prine to be a non-resident of the State of Missouri, and Sec. 5396, R.S. 1919, does not apply to a non-resident of Missouri. Sec. 5396, R.S. 1919; Gray v. McDowell, 69 Ky. 482 (6 Bush, 475); Supreme Ruling, F.M.C. v. Hoskins, 171 S.W. 812; Ross v. Blount, 60 S.W. 897; Latham v. Toombs, 73 S.W. 1060; Stiles v. Hawkins, 207 S.W. 89; 22 C.J. 89. (3) If the statute applies to a non-resident, then the evidence did not show failure of Prine to return to this State for seven successive years, and the demurrers of appellant should have been given. Sec. 5396, R.S. 1919. (4) The evidence was not sufficient to submit the case to the jury on the common-law doctrine of absence from home for seven years without tidings. Biegler v. Supreme Council, 57 Mo. App. 423; Duff v. Duff, 156 Mo. App. 252; Walsh v. Ins. Co., 162 Mo. App. 552; Hitts v. Ahlgren, 170 Ill. 60; Modern Woodmen v. Gerdon, 82 Pac. 1002; Renard v. Bennett, 93 Pac. 263; Hansen v. Owens, 64 S.E. 800; Marquet v. Ins. Co., 159 S.W. 733; Francis v. Francis, 180 Pa. 644; Gorham v. Settegast, 98 S.W. 665; Smith v. Smith, 49 Ala. 158; Donovan v. Twist, 93 N.Y. Supp. 990; Ins. Co. v. Lyons, 98 N.E. 824. (5) There was no issue of fact for the consideration of the jury on the question of Prine's death, in view of the testimony of the witnesses offered by appellant that Prine had been seen alive in Missouri within seven years prior to the commencement of respondent's action. Sec. 4217, R.S. 1919; Clark v. Railroad, 219 Mo. 524; Grimes v. Miller, 221 Mo. 636; 22 C.J. 82, sec. 25; Stack v. Baking Co., 283 Mo. 419; State ex rel. v. Ellison, 268 Mo. 257; Gilpin v. Ry. Co., 197 Mo. 325; Diehl v. Fire Brick Co., 253 S.W. 988; Taylor v. Telegraph Co., 181 Mo. App. 299; Downs v. Horton, 230 S.W. 108; Fitzgerald v. Baker, 85 Mo. 21; Bragg v. Ry. Co., 192 Mo. 331, 354; Mockowik v. Railroad, 196 Mo. 571; Higgins v. Ry. Co., 197 Mo. 317; Hurck v. Railroad, 252 Mo. 48; Tebeau v. Ridge, 261 Mo. 547; Guthrie v. Holmes, 272 Mo. 233; Brunswick v. Ins. Co., 278 Mo. 173. (6) Instruction No. 5 given for the respondent was erroneous and prejudicial to this appellant, because: (a) In the first paragraph, it submits an abstract and literal statement of the statute, calculated to mislead the jury. Wilsch v. Gleiforst, 259 S.W. 852; Rock v. Keller, 278 S.W. 768. (b) It tells the jury that the law presumes the death of Prine, in the event certain things are shown. It was error to throw the presumption of law in the case against appellant. Erhart v. Dietrich, 118 Mo. 430; Bluedorn v. Railway Co., 121 Mo. 268; Schepers v. Railway Co., 126 Mo. 670; Morton v. Heidorn, 135 Mo. 616; McKenna v. Lynch, 233 S.W. 177; Bevans v. Hill, 262 S.W. 419; Canty v. Halpin, 242 S.W. 162. (c) The instruction requires appellant to overcome the presumption in the event certain things are found. A presumption is not anything to be overcome by evidence. Griffith v. Casualty Co., 235 S.W. 85; Stack v. Baking Co., supra; McKenna v. Lynch, supra. (d) The instruction, by the use of the phrase `if any there be' tended to minimize the evidence of appellant and cast a doubt by the court upon its case. Rock v. Keller, supra.
Shelton & Shelton and Collet & Son for respondent.
Plaintiff's evidence made a proper case for the jury and it would have been error for the trial court to have directed a verdict for either of defendants, because: (1) The death of the boy by electrocution was admitted, and plaintiff's evidence that his death resulted from coming in contact with a broken telephone wire of defendant Telephone Company hanging across an electric light wire of defendant city, without any explanation as to how the wire became broken, is prima-facie evidence of negligence on the part of both defendants. Booker v. Railroad Co., 144 Mo. App. 273; Potera v. Brookhaven, 95 Miss. 774; Harrison v. Light Co., 195 Mo. 606; McKay v. Telephone & Telegraph Co., 31 L.R.A. (N.S.) 589; Davenport v. Electric Light Co., 242 Mo. 111; Johnson v. Electric Light Co., 232 S.W. 1094. (2) The evidence was sufficient to warrant a finding of the jury that the broken wire with which the boy came in contact causing his death, was one of defendant Telephone Company's wires, and that it broke from being rusty and rotten. The finding of these facts authorized the presumption that the Telephone Company had notice of the condition of the wire and negligently failed to correct said condition. Hoover v. Railway Co., 159 Mo. App. 416; Davenport v. Electric Light Co., 242 Mo. 111; Johnson v. Electric Light Co., 232 S.W. 1094; Gannon v. Gas Light Co., 145 Mo. 502. (3) The evidence showing that Charles L. Prine, father of the deceased boy, had been a resident of this State and went from this State to the State of Oklahoma in the fall of 1914, taking with him his wife; that he was temporarily located in Oklahoma City for a few weeks, from which place he sent his wife back to their prior home in Missouri, but did not himself return to his Missouri home and had not been heard from by his wife or other members of his family with whom he would naturally be expected to correspond, since the early part of 1915, authorized the presumption that the said Prine was dead, both by the provisions of our statute and the common law. Sec. 5396, R.S. 1919; Adams v. Life Ins. Co., 158 Mo. App. 564; Walsh v. Ins. Co., 162 Mo. App. 552; Bradley v. Modern Woodmen, 146 Mo. App. 441; Gilroy v. Brady, 195 Mo. 210. (4) Plaintiff having offered evidence which, prima-facie, authorized the finding that Charles L. Prine was dead and that plaintiff was therefore the sole surviving parent of the deceased boy, it was the duty of the court to submit that issue to the jury for its finding, regardless of the amount of volume of positive evidence offered by the defendants tending to prove that the said Prine was not dead. Gannon v. Gas Light Co., 145 Mo. 515; Trust Co. v. Hill, 223 S.W. 434; Keller v. Butcher Supply Co., 229 S.W. 173; Lafferty v. Casualty Co., 229 S.W. 750; Brooks v. Roberts, 281 Mo. 551; State v. Taylor, 274 S.W. 47; Biegler v. Sup. Council, 57 Mo. App. 419; Duff v. Duff, 156 Mo. App. 247: Walsh v. Ins. Co., 162 Mo. App. 546; Barz v. Fleischmann Yeast Co., 271 S.W. 364. (5) Respondent's Instruction No. 5 authorizing the jury to find Charles L. Prine, father of the deceased boy, was dead, upon the finding by them that the said Prine went from this State to the State of Oklahoma and had not been heard from after diligent inquiry made of his whereabouts, for seven consecutive years, was authorized both by the statute and by the common law. Sec. 5396, R.S. 1919; Adams v. Life Ins. Co., 158 Mo. App. 564; Holman v. Woodmen of America, 243 S.W. 250; Gilroy v. Brady, 195 Mo. 210; Bradley v. Modern Woodmen, 146 Mo. App. 441; Walsh v. Ins. Co., 162 Mo. App. 552; Duff v. Duff, 156 Mo. App. 247; Duncan v. Clorr, 224 S.W. 678.
Action for damages for the wrongful death of plaintiff's unmarried, minor son, William C. Prine. Plaintiff had judgment for $5,000 against both defendants and each took an appeal to the Kansas City Court of Appeals. That court reversed the judgment and remanded the case, but, deeming its decision to be in conflict with a decision of the St. Louis Court of Appeals, the case was transferred to this court under the constitutional mandate.
Plaintiff's son was nine years old. He was electrocuted on August 23, 1924, when he came in contact with a loose wire of the telephone company which was hanging over a defectively insulated wire of the municipal lighting plant of the defendant city. The latter wire carried 2200 volts of electricity. As counsel conceded upon the argument here that plaintiff made a case of liability as for negligence against both defendants, the facts need not be detailed. The question, which vexed the Kansas City Court of Appeals and which is for decision here, is whether a case was made on the allegation of plaintiff's petition that she was the "only surviving parent of William C. Prine."
Section 4219, Revised Statutes 1919, by reference to Section 4217, gives the right of action for the death of an unmarried, minor child to the father and mother, or to the surviving parent, in case of the death of either. It is conceded that it was necessary for plaintiff to prove that Charles L. Prine, her former husband and the father of deceased, was dead when the suit was filed. [ Plaintiff secured a divorce from Prine and married Heath prior to the death of her son. She offered no direct proof of Prine's death and depended upon the presumption of his death by reason of his absence for seven years.
Plaintiff's evidence tended to show the following facts: She and Prine were married in June, 1913, and lived in Moberly, Missouri, about a year and a half, where he was employed part of the time by the telephone company. Part of the time he was unemployed. In November, 1914, they went to Oklahoma City, Oklahoma, and procured a couple of rooms for light housekeeping and established a home there. He failed to secure work and sent plaintiff back to Missouri the last of December. Deceased was born in Moberly, February 12, 1915.
Prine sent plaintiff a total of only fifteen dollars after she came back to Missouri. He wrote her two or three letters, the...
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