Heath v. Salisbury Home Telephone Co.

• Decision Date: 28 February 1927
• Docket Number: No. 15759.,15759.
• Citation: 27 S.W.2d 31
• Parties: HEATH v. SALISBURY HOME TELEPHONE CO. et al.
• Court: Missouri Court of Appeals

27 S.W.2d 31

HEATH v. SALISBURY HOME TELEPHONE CO. et al.

No. 15759.

Kansas City Court of Appeals. Missouri.

February 28, 1927.

On Motion for Rehearing and Cause Transferred to Supreme Court April 4, 1927.

Appeal from Circuit Court, Macon County; Vernon L. Drain, Judge.

Action by Marjorie Heath against the Salisbury Home Telephone Company and another. Judgment for plaintiff, and defendants appeal.

Reversed, and cause transferred to Supreme Court.

Matthews & Jones, of Macon, and Lamb & Lamb, of Salisbury, for appellant Salisbury Home Telephone Company.

Ben Franklin & Son, of Macon, and Roy McKittrick, of Salisbury, for appellant City of Salisbury.

Shelton & Selton, of Macon, and Collet & Son, of Salisbury, for respondent.

BLAND, J.

This is an action for wrongful death of plaintiff's minor son, brought under the death statute. There was a verdict and judgment in favor of plaintiff in the sum of $5,000.00 and defendants have appealed.

The facts show that plaintiff's nine year old son was killed at the corner of Second and Edison streets in the City of Salisbury on August 23, 1924, as the result of coming in contact with a wire charged with electricity belonging to defendant, Salisbury Home Telephone Company. This wire was loose at both ends and was hanging over a wire of the defendant city which owned the electric light system in Salisbury. The city's wire contained 2,200 volts of electricity. The wires of the telephone company were strung over those of the city and the loose wire became severed as the result of some happening which is not shown in the evidence. However, an inference is deducible from the evidence that it became loose and hung over the wire of the city by reason of a wind storm that had occurred two or three days prior to the death of deceased.

It is admitted that in order for plaintiff to recover it was necessary for her to show that the father of deceased, Charles L. Prine, was dead when this suit was filed, the statute, sections 4219 and 4217, R. S. 1919, requiring him to be joined, if alive, as party plaintiff. It is insisted by both defendants that their demurrers to the evidence should have been sustained, not on account of the failure of plaintiff to show negligence on their part or because deceased was guilty of contributory negligence, but on the principal ground that plaintiff failed to show that Charles L. Prine was dead at the time of the institution of this suit on August 18, 1925. Plaintiff produced no direct proof of the death of said Prine but relied upon the presumption that he was dead by reason of his claimed absence for a period of seven years.

The facts show that plaintiff and C. L. Prine were married in June, 1913, and that she lived with him in Moberly for about a year and a half. Plaintiff testified that during a part of this time Prine was working as a lineman for the Bell Telephone Company at that place; that "he walked the streets most of the time, so far as I know"; that she did not know that he worked during any part of that time for the Wabash Railway Company, but there was other testimony that he was employed by the latter company for a short time before he left Moberly. The witness testified that she and her husband moved to Oklahoma City in the latter part of November, 1914; that she remained in Oklahoma City with Prine for about six weeks after which time she returned to Moberly; that "he (Prine) sent me back there * * * he insisted that I go back there"; that she returned on the 31st of December, 1914; that Prine did not return to Moberly after that time as far as she knew; that she had never seen him since; that Prine was a man of good health when she saw him last; that deceased was born on February 12, 1915, and we assume from the record that he was their only child; that after returning to Moberly she received two or three letters from Prine; that after the child was born Prine sent her about $15.00 and this was all the money that she had ever received from him since she left Oklahoma; that the last time she heard from him, directly or indirectly, was in April, 1915, and that she did not know anything of his whereabouts after that time.

On cross examination the witness was asked if she understood at the time Prine sent her back to Moberly that he was leaving her, and she answered "No, I didn't, he sent me home, that was all the evidence I had." She testified that Prine was always a "sort of roving, harum-scarum sort of the fellow"; that they had two light house-keeping rooms on Sixth street in Oklahoma City and that while she was in that city Prine did not procure employment there. She was asked, "Q. You had established your headquarters and home at that place and were keeping house? A. Yes, sir." She testified that when she left Oklahoma they gave up their rooms; that she heard from Prine in January or February, 1915; that she answered his letters and directed her answers to a different place from that where they had lived when she was there; that in May, 1915, she wrote the last letter that she wrote from Moberly; that the last she knew of Prine he was in Oklahoma City; that she moved to St. Louis on May 14, 1915; that in the fall of 1915, after she went to St. Louis, she made inquiries to see whether Prine was still in Oklahoma City by writing there but she did not testify as to whom she wrote. Apparently the letter or letters that she wrote in the fall of 1915 were written to and were received by Prine because she testified that these last letters that she wrote to Prine from St. Louis were not returned. She further testified that she wrote Prine after she received his last letter.

The evidence further shows that on November 8, 1916, plaintiff obtained a divorce from Prine and the custody of the child; that she procured service upon Prine in that suit by publication, alleging that he was a non-resident of the State of Missouri; that in June, 1920, she married a Mr. Heath of St. Louis, with whom she now lives as his wife. Prior to her going to St. Louis she was assisted financially by her sister and brother but after going there she obtained work in a telephone office and later placed deceased in an institution in that city where children of poor parents were kept at a small cost. Deceased remained in this institution for three and a half years when in 1918 she placed him with Mr. W. H. Johnson and wife of Salisbury, Missouri, with whom he was living at the time of his death. Plaintiff was related to Mr. Johnson by marriage. During the time that deceased was in the Johnson home plaintiff supported deceased, paying for his board, his clothing and a large hospital bill, with the exception of the nurse's bill which was paid by Johnson. Other than this contribution by Johnson, all of deceased's expenses were paid by plaintiff, including the expense of his funeral.

Plaintiff testified that when she turned the child over to Johnson and his wife, she did not relinquish control of him; that she visited him during her vacation time; that Johnson and his wife desired to adopt the child but she refused to permit this; that she agreed to allow him to remain with them until Mrs. Johnson's health was restored, for the reason that the Johnsons had become attached to the child and she did not feel like taking him away from them while Mrs. Johnson was ill; that she had planned to take the child into her own home when Mrs. Johnson recovered her health. While the child was with the Johnsons he went under the name of William Johnson and was so buried.

Defendants introduced several witnesses who had seen Prine in the State of Missouri on various occasions after he was last heard from by plaintiff. Defendants' witness, Switzer, testified that he was chief clerk for the superintendent of the Wabash Railway Company at Moberly and had charge of the records of the employment and discharge of employees of that railroad; that the records of the Wabash Railway Company at Moberly showed that in 1916 inquiry had been received of the whereabouts of Prine from a company in Galveston, Texas, and the witness produced a letter from this company accompanying which was the signature of Prine. The witness testified that this signature was in the same handwriting as the signature of Prine that appeared on the "`service records" of the railroad company at Moberly.

The evidence shows that Prine had a distinguishing mark, made by a cut that he received in 1914 which left a scar on his neck and face. Defendants' witness, Johnson, testified that he knew Prine when the latter and his wife lived at Moberly; that Prine kept a small account at the store of the witness; that Prine came into the witness' store in Moberly during the shop strike in 1922 and inquired about some railroad men and then went out; that the witness had not seen Prine since that time. Defendants' witness, Finn, testified that he knew Prine when the latter lived at Moberly and in 1922 during the shop strike he came in the witness' restaurant where he served him a sandwich and coffee whereupon Prine left the restaurant and the witness had not seen him since. Defendants' witness Wyescarver testified that he had been a locomotive fireman for the Wabash Railway Company for seventeen years and that Prine was a fireman for that railroad in 1913 and 1914 and that the latter quit in 1914; that in the fall of 1923 Prine called the witness from St. Louis, telling him that he was going through Moberly and wanted the witness to go with him to Kansas City; that he went to Kansas City with Prine and stayed there two days, one night at the Washington Hotel and the other night at a place not recalled by the witness; that they were in Kansas City "for a little time" or for a lark; that during this time Prine told him that he was working for the Standard Oil Company in Oklahoma; that when the witness left Prine had a "ticket for some place in Kansas"; that the witness returned to Moberly and reported to "some of the boys...