Home Ins. Co. of New York v. Missouri Power & Light Co.

• Decision Date: 05 June 1931
• Docket Number: 29661
• Parties: Home Insurance Company of New York, Appellant, v. Missouri Power & Light Company
• Court: Missouri Supreme Court

39 S.W.2d 1039

327 Mo. 1201

Home Insurance Company of New York, Appellant, v. Missouri Power & Light Company

No. 29661

Supreme Court of Missouri

June 5, 1931

Appeal from Sullivan Circuit Court; Hon. J. E. Montgomery Judge.

Affirmed.

C. C Crow, W. A. Lintner and Geo. W. Eastin for appellant.

(1) The amended petition sufficiently stated every fact necessary to a recovery in said cause; hence, the court erred in sustaining the defendant's amended motion to strike out plaintiff's amended petition. (2) It made no difference who owned the wiring in the building, if defendant ran an excessive or dangerous amount of current into the building through the said wires. The property of Anderson was burned and plaintiff paid the insurance and the fire was caused by the grossly excessive amount of electricity sent into the building, causing the fire that destroyed the building. And the demurrer was sustained on the ground and for the reason that plaintiff did not allege the specific amount of electricity sent over the wires and causing the fire; and the court must say that it was a physical impossibility for plaintiff or others to have been present and measured the current as it entered the building. It certainly would have been dangerous to have attempted it. (3) The allegations of the petition are a contract between Anderson and defendant to furnish electricity and that the defendant furnished a grossly excessive amount of electricity just prior to the fire and which burned the property. In asking plaintiff to name the exact amount is requiring that which is humanely impossible. The presence of a grossly excessive amount of current resulting in the fire is all that is required. Morrow v. Gas & Elec. Service Co., 315 Mo. 367; Shannon v. Lt. & Pr. Co., 315 Mo. 1136; Geisman v. Edison Elec. Co., 173 Mo. 654; Price v. St. Ry Co., 220 Mo. 453; Smissman v. Wells, 213 Mo.App. 474; Gannon v. Gas Co., 145 Mo. 512; Grady v. Lt., Pr. & Traction Co., 253 S.W. 202; Kelly v. Higginsville, 185 Mo.App. 60.

E. B. Hamilton and Mills & Jayne for respondent.

(1) The action of the court in sustaining a motion striking out a part of the petition will not be reviewed unless assigned as error in the motion for a new trial and preserved in the bill of exceptions. Williams v. Ry. Co., 112 Mo. 485. (2) Where there is no bill of exceptions, only the record proper is reviewable in an action at law. Hannibal Rubber Co. v. Handdon, 295 S.W. 806. (3) Where no exception was saved to the overruling of motion for new trial, only the record proper can be reviewed. State ex rel. Johnson v. Hiller, 295 S.W. 132; I. Rothchild Produce Co. v. Hind & Fuchs, 295 S.W. 1090. (4) Absent an adverse ruling, and an exception saved thereto, there is nothing before the court for review. Gann v. Ry. Co., 6 S.W.2d 46; Anderson v. Sutton, 293 S.W. 773; Adams v. Railroad, 287 Mo. 535; Kersten v. Hinds, 283 Mo. 623; F. C. Church Shoe Co. v. Turner, 218 Mo.App. 516. (5) Filing of an amended pleading constitutes an abandonment of the prior pleading and the abandoned pleading is not a part of the record proper and can only be considered if preserved in the bill of exceptions. State ex rel. Johnston v. Hiller, 295 S.W. 132; Ticknor v. Voorhies, 46 Mo. 110; Arkla Lumber Co. v. Henry Kuellmalz, 252 S.W. 961.

C. C. Crow, W. A. Lintner and Geo. W. Eastin for appellant in reply.

(1) The motion to strike out appellant's amended petition, sustained by the lower court was in effect a general demurrer, although miscalled a motion to strike out. It went to the whole of appellant's case and resulted in a final judgment against appellant. Hence, no bill of exceptions was required showing motion in arrest, or motion for new trial or action of the lower court overruling same, nor exceptions of appellant to action of lower court in sustaining said motion. Ewing v. Vernon County, 216 Mo. 685; Bick v. Dry, 134 Mo.App. 589; Austin v. Loring, 63 Mo. 21; Mumford v. Keet, 71 Mo.App. 536; Dickey v. Webster County, 300 S.W. 1086. (2) Motions and demurrers seek different remedies. A motion seeks some order of court falling short of the dignity of a judgment; a demurrer raises an issue of law and seeks a trial and judgment on that issue. Ewing v. Vernon County, 216 Mo. 681. (3) Where a motion to strike out operates as a demurrer, it is part of record proper, and point decided will be considered on appeal as arising on the record proper. Dickey v. Webster County, 300 S.W. 1086; Interstate Ry. Co. v. Railroad, 251 Mo. 718; Carder v. Drainage District, 262 Mo. 551; Hannah v. Hannah, 109 Mo. 240; Aultman & Co. v. Daggs, 50 Mo.App. 288.

OPINION

White, P. J.

The record in this case recites that August 5, 1927, the plaintiff filed a petition in the Circuit Court of Sullivan County; that May 12, 1928, defendant filed a motion to make said petition more definite and certain, and on the same day said motion was sustained. Whereupon plaintiff filed an amended petition which alleged the corporate character of defendant; that it was engaged in furnishing electricity, etc., in Green City, Sullivan County, Missouri; that plaintiff was a New York corporation transacting fire insurance business and licensed to do business in Missouri; that October 4, 1925, A. O. Anderson was the owner of a certain ice plant with machinery described, in a building in Green City; that plaintiff had issued to said Anderson an insurance policy to indemnify him against loss by fire of the property described, providing for the payment of $ 8,000 to Anderson if said property was destroyed by fire; that the property was destroyed by fire October 4, 1925, and plaintiff paid to said Anderson $ 8,000 as provided in the policy. The petition then proceeded as follows:

"Plaintiff states that it was provided by the terms of said policy of insurance issued to said Anderson, as follows:

"'If this company shall claim that the fire was caused by the act or neglect of any person or corporation, private or municipal, this company shall, on payment of the loss, be subrogated to the extent of such payment to all right of recovery by the insured for the loss resulting therefrom, and such right shall be assigned to this company by the insured on receiving such payment.'

"Plaintiff states that at the time of the fire and ever since said fire plaintiff has and does now claim that the fire that destroyed said Anderson's building and all personal property, as herein described, was caused solely by defendant, Missouri Light & Power Company, as hereinafter stated.

"Plaintiff states that after the payment of the eight thousand dollars by plaintiff to Anderson as herein alleged, and in accordance with the terms of the contract between plaintiff and said Anderson, there was made, executed and delivered to plaintiff, in writing, an assignment of all right that said Anderson had, to the extent of the payment made by plaintiff, against the above defendant herein, and said assignment was duly and regularly had and made in accordance with the terms of the original contract of insurance between plaintiff and said Anderson.

"Plaintiff states that prior to the entering into the contract of insurance between it and said Anderson there was a contract entered into between said Anderson and Missouri Light & Power Company, whereby and under the terms of which said Missouri Light & Power Company was to furnish to said Anderson sufficient electricity to furnish light and power for the building in this petition described, and that for a long time prior to the 4th day of October, 1925, said defendant company did furnish said Anderson with a sufficient voltage or amount, and no more, of electricity, in accordance with its contract so to do, but that a short time prior to or on October 4, 1925, the defendant caused and permitted electricity to be transmitted over the wires leading to the building occupied and owned by said Anderson a voltage or amount of electricity greatly in excess of the amount necessary to light said premises, and that said voltage or amount of electricity was grossly in excess of the amount necessary to light said premises and furnish power therefor and was very dangerous to life and property, and that on or about the 4th day of October, 1925, as a result of permitting the greatly excessive voltage or amount of electricity to pass to and through the wires to the building owned by said Anderson, the fire occurred which destroyed all the personal property owned by said Anderson. Plaintiff states that the fire which destroyed said property was caused solely by reason of the fact that defendant caused and permitted a grossly excessive amount of voltage or electrical fluid to flow through its wires into said building, the exact voltage being unknown to the plaintiff. That by reason of all the facts stated plaintiff was compelled to and did pay said Anderson said sum of eight thousand dollars on the 26th day of October, 1925, and that by reason of the acts and conduct of defendant herein and by reason of the assignment herein stated, this plaintiff has been damaged in the sum of eight thousand dollars, with interest from October 26, 1925.

"Wherefore, plaintiff prays judgment against defendant in the sum of eight thousand dollars, with interest at the rate of six per cent per annum from the 26th day of October, 1925, and for its costs in this behalf expended."

Defendant, September 13, 1928, filed its amended motion to strike out said amended petition, as follows:

"Comes now defendant, and by leave of court first had and obtained files this, its amended motion to strike out plaintiff's amended petition, and for grounds of said motion, defendant states that at the May term, 1928, of this court, defendant filed its motion to require plaintiff to make its...