Henneke v. Gasconade Power Co., No. 19833.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtCave
Citation152 S.W.2d 667
PartiesOTTO HENNEKE, RESPONDENT, v. GASCONADE POWER COMPANY, APPELLANT.
Docket NumberNo. 19833.
Decision Date26 May 1941
152 S.W.2d 667
OTTO HENNEKE, RESPONDENT,
v.
GASCONADE POWER COMPANY, APPELLANT.
No. 19833.
Kansas City Court of Appeals, Missouri.
May 26, 1941.

[152 S.W.2d 668]

Appeal from Circuit Court of Gasconade County. — Hon. R.A. Breuer, Judge.

AFFIRMED.

R.W. Hedrick, Frank E. Atwood and L.G. Graf for appellant.

(1) The trial court erred in refusing defendant's requested instruction in nature of demurrer to the evidence interposed at close of plaintiff's case and again at close of whole case. 45 C.J., pp. 1163-1165, par. 750, notes 69-74; 45 C.J., p. 1167, par. 750; Byerly v. Light, Power & Ice Co., 130 Mo. App. 593, 603; Weber v. Valier & Spies Milling Co. (Mo. App.), 242 S.W. 985, 989; 45 C.J., p. 1221, par. 783, notes 42-44; Tabler v. Berry (1935), 337 Mo. 154, 85 S.W. (2d) 471, 476; Price v. Metropolitan St. Ry. Co., 220 Mo. 435, 119 S.W. 932; McCloskey v. Koplar, 329 Mo. 527, 46 S.W. 557, 563, 92 A.L.R. 541. (a) The pleadings and proof did not bring the case within the res ipsa loquitur rule. Harke v. Haase (1934), 335 Mo. 1104, 75 S.W. (2d) 1001, 1004; Polokoff v. Sanell (1932), 52 S.W. 443, 446; McGrath v. St. Louis Transit Co., 197 Mo. 97, 104; Benedick v. Potts, 88 Md. 52; Shearman and Redfield on Negligence (4 Ed.), sec. 59; Pointer v. Mountain Ry. Const. Co., 189 S.W. 805, 809, 269 Mo. 104; Hedrick v. Railway Co., 195 Mo. 111, 93 S.W. 269; Kapros v. Pierce Oil Corp., 324 Mo. 992, 25 S.W. (2d) 777, 781; Trotter v. St. Louis Ry. Co., 122 Mo. App. 405, 412, 413; State ex rel. Hurley v. Becker, 334 Mo. 437, 66 S.W. (2d) 524; McCloskey v. Koplar, 329 Mo. 527, 533, 46 S.W. (2d) 557; Meade v. Mo. Water & Steam Supply Co., 318 Mo. 350, 357, 300 S.W. 515; Myers v. City of Independence (Mo.), 189 S.W. 816, 822; Brown v. St. Louis Co. Gas Co., 131 S.W. (2d) 354, 359; Removich v. Construction Co., 264 Mo. 43, 173 S.W. 686, 689, 690; Russell v. St. Louis & S.F. Ry. Co., 245 S.W. 590, 591. (b) The evidence as a whole fails to show negligence on part of defendant. (2) The court erred in giving plaintiff's requested Instruction 3 submitting the case under the res ipsa loquitur rule. (3) The trial court erred in admitting, over the objections and exceptions of defendant, testimony of oral conversations and negotiations between plaintiff and defendant prior to the execution of the written contract in evidence. 13 C.J., p. 544, sec. 515; Tuggles v. Callison, 143 Mo. 527, 45 S.W. 291; Crim v. Crim, 162 Mo. 544, 63 S.W. 489; Tufts v. Morris, 87 Mo. App. 98; Dearborn Canning Co. v. Ry. Co., 188 Mo. App. 208, 175 S.W. 93. (4) The court erroneously admitted in evidence, over the objections and exceptions of defendant, two blocks of wood marked plaintiff's exhibits "D" and "E."

Joseph T. Tate, James Booth and James L. Anding for respondent.

(1) Res ipsa loquitur facts compel the submission of the issue of negligence to the jury. Evans v. Missouri Pacific R.R. Co., 116 S.W. (2d) 8, 9; State ex rel. Kurz v. Bland et al., 64 S.W. (2d) 638, 641. (a) The res ipsa loquitur doctrine is applicable to the pleadings and evidence in this case. Glasco Electric Co. v. Union Electric Light & Power Co., 61 S.W. (2d) 955; San Juan Light & Transit Co. v. Requena, 224 U.S. 89, 32 S. Ct. 399, 56 L. Ed. 680; Reynolds v. Narragansett Electric Lighting Co., 59 Atl. 393; Memphis Consolidated Gas Co. v. Letson, 135 Fed. 969; Illinois Power & Light Corp. v. Hurley, 49 F. (2d) 681; Collins v. Virginia Power & Electric Co., 168 S.E. 500; Joyce on Electric Law (2 Ed.), par. 445 (e), p. 744; Herries v. Bond Stores, Inc., 84 S.W. (2d) 153; McCloskey v. Koplar, 46 S.W. (2d) 557; Evans v. Missouri Pacific R.R. Co., 116 S.W. (2d) 8; Thompson v. Kansas City Pub. Serv. Co., 114 S.W. (2d) 145; Harke v. Haase, 75 S.W. (2d) 1001; Van Houten v. Kansas City Pub. Serv. Co., 122 S.W. (2d) 868; Glossip v. Kelly, 67 S.W. (2d) 513; 20 C.J., pp. 380, 383. (b) The res ipsa loquitur doctrine operates as a substitute for specific proof of negligence, so as to make a prima facie case. Glasco Electric Co. v. Union Electric Light & Power Co., 61 S.W. (2d) 955; Herries v. Bond Stores, Inc., 84 S.W. (2d) 153; Cummings v. Union Quarry & Construction Co., 87 S.W. (2d) 1039; Glossip v. Kelly, 67 S.W. (2d) 513; Evans v. Missouri Pacific R.R. Co., 116 S.W. (2d) 8. (2) Plaintiff's instruction No. 3 was a correct statement of the law applicable to the facts in this case. Harke v. Haase, 75 S.W. (2d) 1001; Thompson v. Kansas City Pub. Serv. Co., 114 S.W. (2d) 145; Van Houten v. Kansas City Pub. Serv. Co., 122 S.W. (2d) 868. (3) (a) Appellant's assignments of error numbered 3 and 4 are too general and undeveloped to present anything for review. Martin v. Connor, 128 S.W. (2d) 309; Sangenbacher v. Santhuff, 220 Mo. 274; School District of Kansas City v. Phoenix Land & Improvement Co., 297 Mo. 332; Artz v. Bannan, 71 S.W. (2d) 795; Miller v. Mutual Benefit Health & Accident Ass'n, 80 S.W. (2d) 201; Johnson v. City of St. Louis, 138 S.W. (2d) 666. (b) Error cannot be assigned on the basis of testimony received without objection. Diamont v. Stein, 116 S.W. (2d) 273. (c) The parol evidence rule may be waived. Fischman-Harris Realty Co. v. Kleine, 82 S.W. (2d) 605, 611. (d) It was essential that the contract be read in the light of the surrounding circumstances for the purpose of determining its intent and meaning, and such circumstances could be shown by parol evidence. Proctor v. Home Trust Co., 284 S.W. 156; Laclede Construction Co. v. Moss Tie Co., 185 Mo. 25; Arnoldia v. Childs, 70 Mo. App. 530; 22 C.J., p. 1173. (4) After defendant has met the burden of evidence cast upon it in res ipsa loquitur case, plaintiff must then bring forward evidence in rebuttal. McCloskey v. Koplar, 46 S.W. (2d) 557, 563.

CAVE, J.


Plaintiff brought this action in two counts to recover damages on account of the loss of a certain number of fertile turkey eggs which were in the process of hatching. The plaintiff alleged the loss was due to the negligence of the defendant in failing to supply the plaintiff with constant and continuous current, which will be more fully discussed. Upon a trial the verdict of the jury was for the plaintiff on both counts. The defendant has appealed.

The case was tried and submitted to the jury by the plaintiff on the theory that the res ipsa loquitur doctrine applied, and the defendant joined in this theory, but denies that the evidence brings the case within such doctrine.

The petition was in two counts, declaring on general negligence, and defendant's answer, to both counts, was a general denial.

The evidence shows that the defendant used and supplied electric power which was generated in Jefferson City, Missouri, and transmitted from there over a 33,000 volt line to Linn, Missouri. There the main line was divided into two branches referred to as the north and south branches and each carried 33,000 volts. The south branch is the one here involved; it supplied electric current to the community of Belle, Bland, Owensville and Gerald. A short distance east of Bland there was a transformer substation, the function of which was to "boost" the power eastward through Owensville and other communities. That at Owensville the power was taken off the "high-line" (33,000 volts) and reduced to 2300 volts for consumption by its customers through the Owensville local electric system. There was also at Owensville a "stand-by" plant owned by the defendant, but formerly owned and operated for about 20 years by Simon Helling, but at the time of this occurrence such plant was used only on occasions of interruptions of current on the high-line.

The evidence disclosed that the local distributing system of Owensville was equipped with some 30 transformers, serving about 450 customers.

Plaintiff described in detail the process of hatching turkey eggs with the plant and equipment he had. That the process takes about 28 days, and that during about the last three days there must be constant and continuous heat and that if that should be interrupted for ten minutes or more, at any one time, the eggs will become chilled and the "poults" would die.

Plaintiff further testified that he owned a farm about one-half mile from Owensville on which he operated a turkey hatchery and developed poult turkeys for commercial

152 S.W.2d 669

use, and had been doing so for about 11 years. That he raised about 10,000 poults a year. That prior to March, 1937, he owned and operated a hot water system hatchery and used either oil or coal for heat. In January, 1937, the plaintiff discussed with Norman Paxton, defendant's local manager, the possibility of disposing of the hatchery he then had and installing a new one which would be heated and operated by electricity. "And I told him, in order to have current down on the farm, I had to have continuous and constant current, uninterrupted current all the way through, otherwise I would not be interested in the power. I explained the equipment to him." Mr. Paxton and Mr. Farris, another employee of the defendant, came to his farm and he showed them the place where the equipment was to be put and he again told them that he "must have constant and continuous heat there." That conversation was in February, 1937.

The trial court admitted in evidence the statements made by the plaintiff to defendant's agents for the sole purpose of showing notice of the purposes for which the current was to be used. The court did not permit the plaintiff to relate any statement made to him by the agents of the defendant.

About March 10, 1937, the plaintiff signed a written contract with the defendant for electrical service. This contract was admitted to prove he was a customer of defendant and it is not necessary to set it out in full, but such parts as may be pertinent will be discussed.

After signing the written contract plaintiff purchased some new equipment which consisted of "two No. 9 incubating units and one separate 24 hour hatcher." After this equipment was installed in...

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4 practice notes
  • Wells v. Asher, No. 7448
    • United States
    • Court of Appeal of Missouri (US)
    • 29 décembre 1955
    ...638, 641; Duncker v. St. Louis Public Service Co., Mo.App., 241 S.W.2d 64, 67(4, 5); Henneke v. Gasconade Power Co., 236 Mo.App. 100, 152 S.W.2d 667, 672(3); Walters v. Adams Transfer & Storage Co., 235 Mo.App. 713, 141 S.W.2d 205, 6 Whitaker v. Pitcairn, supra, 174 S.W.2d loc. cit. 168(5);......
  • Daniels v. Smith, No. 9059
    • United States
    • Missouri Court of Appeals
    • 18 août 1971
    ...Thurman v. Johnson, Mo.App., 330 S.W.2d 179, 182(6)) or to disprove causation. Henneke v. Gasconade Power Co., 236 Mo.App. 100, 109(2), 152 S.W.2d 667, 671(2); MAI 31.02(1) and 31.02(2). Louisiana, as plaintiff syas, apparently subscribes to a rule that where property of an innocent party i......
  • National Food Stores, Inc. v. Union Elec. Co., No. 34375
    • United States
    • Missouri Court of Appeals
    • 17 avril 1973
    ...company, are insurers or guarantors of the safety of persons or of their property, Henneke v. Gasconade Power Co., 236 Mo.App. 100, 152 S.W.2d 667 (1941); Hamilton v. Laclede Electric Co-op, 294 S.W.2d 11 (Mo.1956); and Donovan v. Union Electric Co., 454 S.W.2d 623 (Mo.App.1970), we hold th......
  • Bearden v. Lyntegar Elec. Co-op., Inc., No. 8038
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 4 mai 1970
    ...negligence. Texas Utilities Co. v. Dear, 64 S .W.2d 807 (Tex.Civ.App., writ dism'd); Henneke v. Gasconade Power Co ., 236 Mo.App. 100, 152 S.W.2d 667 (1941); Arkansas Power & Light Co . v. Abboud, 204 Ark. 808, 164 S.W.2d 1000, 143 A.L.R. 297 (1942); Bissel v. Eastern Illinois Utility Co., ......
4 cases
  • Wells v. Asher, No. 7448
    • United States
    • Court of Appeal of Missouri (US)
    • 29 décembre 1955
    ...638, 641; Duncker v. St. Louis Public Service Co., Mo.App., 241 S.W.2d 64, 67(4, 5); Henneke v. Gasconade Power Co., 236 Mo.App. 100, 152 S.W.2d 667, 672(3); Walters v. Adams Transfer & Storage Co., 235 Mo.App. 713, 141 S.W.2d 205, 6 Whitaker v. Pitcairn, supra, 174 S.W.2d loc. cit. 168(5);......
  • Daniels v. Smith, No. 9059
    • United States
    • Missouri Court of Appeals
    • 18 août 1971
    ...Thurman v. Johnson, Mo.App., 330 S.W.2d 179, 182(6)) or to disprove causation. Henneke v. Gasconade Power Co., 236 Mo.App. 100, 109(2), 152 S.W.2d 667, 671(2); MAI 31.02(1) and 31.02(2). Louisiana, as plaintiff syas, apparently subscribes to a rule that where property of an innocent party i......
  • National Food Stores, Inc. v. Union Elec. Co., No. 34375
    • United States
    • Missouri Court of Appeals
    • 17 avril 1973
    ...company, are insurers or guarantors of the safety of persons or of their property, Henneke v. Gasconade Power Co., 236 Mo.App. 100, 152 S.W.2d 667 (1941); Hamilton v. Laclede Electric Co-op, 294 S.W.2d 11 (Mo.1956); and Donovan v. Union Electric Co., 454 S.W.2d 623 (Mo.App.1970), we hold th......
  • Bearden v. Lyntegar Elec. Co-op., Inc., No. 8038
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 4 mai 1970
    ...negligence. Texas Utilities Co. v. Dear, 64 S .W.2d 807 (Tex.Civ.App., writ dism'd); Henneke v. Gasconade Power Co ., 236 Mo.App. 100, 152 S.W.2d 667 (1941); Arkansas Power & Light Co . v. Abboud, 204 Ark. 808, 164 S.W.2d 1000, 143 A.L.R. 297 (1942); Bissel v. Eastern Illinois Utility Co., ......

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