Johnson v. Kansas City Electric Light Co.

• Decision Date: 23 May 1921
• Docket Number: No. 13238.,13238.
• Citation: 232 S.W. 1094
• Parties: JOHNSON v. KANSAS CITY ELECTRIC LIGHT CO.
• Court: Missouri Court of Appeals

232 S.W. 1094

JOHNSON v. KANSAS CITY ELECTRIC LIGHT CO.

No. 13238.

Kansas City Court of Appeals. Missouri.

May 23, 1921.

Rehearing Denied June 27, 1921.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

"Not to be officially published."

Action by O. E. Johnson against the Kansas City Electric Light Company. From" judgment for plaintiff, defendant appeals. Affirmed.

John H. Lucas, Wm. C. Lucas, and Ludwick Graves, all of Kansas City, for appellant.

Horace H. Blanton, Gage, Ladd & Small, and Caleb S. Monroe, all of Kansas City, for respondent.

THIMBLE, P. J.

Defendant is engaged in the business of generating electric current for light and power purposes, and of distributing the same over wires maintained on poles throughout Kansas City and vicinity. Plaintiff was a carpenter, builder, and contractor who, while examining a vacant house with a view to making some repairs thereon, came in contact with an uninsulated telephone wire which had, unknown to him, become heavily charged with electricity escaping thereto from defendant's wires through the latter's alleged negligence. He brought this action for damages, and, in the trial court recovered a verdict and judgment for $4,500, to annul which the defendant took an appeal to this court.

The injury occurred on the 31st of December, 1913, and for a long time prior thereto the defendant had maintained a line of poles 25 feet in height along the east side of the public alley, 16 feet wide, running north and south parallel to and midway between Summit and Madison streets in said city, on which poles was a line of primary wires carrying a current of 2,300 volts of electricity. So far as concerns this case, said alley at its north end began at Forty-Fourth street and ran south to Forty-Fifth street. For many years prior to the above-named date the Kansas City Home Telephone Company had maintained along the west side of said alley its line of poles 25 feet high, and from the line maintained thereon telephone wires were run to houses in that vicinity in order to furnish telephone service to the patrons there. In the year 1910, in order to furnish telephone service to a house at 4404 Summit street, the telephone company strung two wires from its pole line east across the alley and over the electric wires a distance of 150 feet to a point on the south side of the house about 16 feet above the ground, and from thence the wires ran down the side of the house to a point about 18 inches above the ground, where they were again attached to and entered the house. One of these telephone wires was smooth and uninsulated, and at the point where they crossed above the electric wires they were not over 4 or 5 inches above the electric wires. Of course if at any time the telephone wires sagged or became broken they would come in contact with the electric wires. If they did, there was great danger of the current or some portion thereof escaping from the electric wires to and charging the telephone wires, so that, if any one touched the latter, forming a connection with the earth, a severe injury would be received.

Shortly after noon on December 31, 1913, the plaintiff, in going along the south side of the house to see if any repairs there were needed, came in contact with the telephone wire and was shocked into insensibility by a charge of electricity passing through his arm and body, hurling him to the ground and severely injuring him. Plaintiff's evidence tends to show that his left hand and right wrist were severely burned, his head was cut, and he suffered a severe nervous and physical shock, whereby he has lost control of his arms and legs, his breathing and the operation of his respiratory organs are impaired, as well as his heart action, eyesight, and hearing, also his digestion, the action of his kidneys and bladder, as well as the control of the latter, and the function of his sexual organs has become impaired, and he has lost both his digestive and sexual appetite, which condition is permanent, whereby he has been changed from a strong, able-bodied man, capable of earning in his business from $1,800 to $3,000 per year, to a weakling unable to pursue his business, aside from the suffering while confined to his bed and in a hospital under the care of doctors and a nurse, the expense of which he was compelled to bear.

Originally the suit was against the Home Telephone Company and the defendant, but plaintiff settled with the former, under the provisions of section 4223, R. S. 1919, for $2,250 and dismissed as to that company.

One of the points made by the present defendant is that jurisdiction over the appeal herein is in the Supreme Court, because in defendant's answer it raised the question of the constitutionality of the said section whereby the plaintiff was allowed to settle with the telephone company without releasing the defendant herein. But the answer, after setting up the fact of settlement with the telephone company under said section on the 13th day of December, 1916, says that plaintiff thereby released the present defendant and is not entitled to recover herein, because "said statute is unconstitutional and void." And the motion for new trial on this point merely says the court erred in not declaring said section unconstitutional and void. This, the Supreme Court has repeatedly held, is insufficient to raise a constitutional question or to bring it into the case. The party attempting to raise a constitutional question must "come into the open and put his finger on the specific provision of the Constitution." Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685, 688, 113 S. W. 1108; State ex rel. v. Tibbe Electric Co., 250 Mo. 522, 527, 157 S. W. 635. "To say merely that an act is unconstitutional indicates nothing." Ash v. City of Independence, 169 Mo. 77, 79, 68 S. W. 888. Lack of jurisdiction on the ground that a constitutional question is involved is unlike lack of jurisdiction or power under the law to adjudicate or pass upon the cause of action, in that the latter is present in the case and arises by force of law, whereas the former does not come into operation unless the question is properly brought into the case. The point that this court is without jurisdiction over this appeal must therefore be disallowed.

It is urged that the court erred in excusing, over the objections and exceptions of defendant, 6 jurors who were members of the panel of 18. One of these, "Sharlton, was not excused, but actually served upon the jury. Two of the others, O'Zias and Dixon, need not be noticed, since no complaint of their rejection is made in the motion for new trial. However, the record shows that when Dixon was excused defendant's trial counsel announced that no objection was made thereto; and, with reference to O'Zias, the court excused him after he had stated that owing to his affiliations and connections he might have a leaning in his mind toward corporations and against a man who would bring a suit for damages against them.

With regard to the remaining three who were excused, they were employés of the Kansas City Railways Company, which until recently before the trial sustained closer relations to defendant, if possible, than if the two had been legal Siamese twins, they having the same officers, directors, with the stock of both held by the defendant, and maintained offices together with reciprocal contracts as to power, power plants, office space, etc.; that, though a dissolution of the two companies had shortly before been ordered by the federal court and carried into effect so far as taking the stock out of the common source or holding and distributing it to the respective shareholders of each and a separation of officers and directors was concerned, yet the outward relations, which would be observable by and have an influence upon the employés thereof, remained practically the same. Of the three jurors now under consideration answers were given by one which even the cold printed page of the record discloses did not satisfy the mind of the trial court as to his impartiality and fitness as a juror in the case. For instance, in reply to the court's questions as to the existence of any feeling in the matter, he gave such answers as these: "I can't say that I have," "Nat necessarily," "I don't know," and then ended up by admitting that, engendered by his environment, association, and connection with the street car company, he had at the time some feeling in favor of corporations generally when they are sued by a person for personal injuries. The other two, one of whom had been an employé of the Kansas City Railways Company and its predecessor for 30 years and the other for two or three, said they would not be influenced, but the answers of one of these was not wholly free from uncertainty and hesitation, finally ending in denying that there was even a possibility that he might be influenced. Another juror excused was not an employé of the company, but was connected with a railway company and had been doing business with the Kansas City Railways Company for 15 or 18 years. While he said he was not "conscious of any bias," yet he was under obligations to both companies for favors shown him and information obtained from the two, the street car and the electric light companies, and reiterated to the last that "in a way" he felt under obligations to their officers.

In view of the foregoing we are unable to say the trial court abused its discretion in sustaining the challenges to these jurors. Theobald v. St. Louis Transit Co., 191 Mo. 395, 428, 429, 90 S. W. 354; Vessels v. Kansas City, etc., Power Co. (Sup.) 219 S. W. 80, 85; Quirk v. Metropolitan St. By, Co., 200 Mo. App. 585, 210 S. W. 103, 106. The competency of these jurors was a mixed question of law and fact, and the trial court's disposition thereof...