Joyce v. Missouri & Kansas Telephone Co.

• Decision Date: 31 December 1917
• Docket Number: No. 12485.,12485.
• Court: Missouri Court of Appeals
• Parties: JOYCE v. MISSOURI & KANSAS TELEPHONE CO.

211 S.W. 900

JOYCE v. MISSOURI & KANSAS TELEPHONE CO.

No. 12485.

Kansas City Court of Appeals. Missouri.

December 31, 1917.

On Motion for Rehearing, February 18, 1918.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

"Not to be officially published."

Action by Anna E. Joyce against the Missouri & Kansas Telephone Company. Verdict for plaintiff, and judgment entered thereon after a remittitur, and defendant appeals. Affirmed.

J. W. Gleed, Battle McArdle, and D. D. Palmer, all of Kansas City, for appellant.

Hogsett & Boyle, of Kansas City, for respondent.

ELLISON, P. J.

It is charged in plaintiff's petition that, while engaged in attempting to use one of defendant's telephones installed in a private residence where she was boarding, she received an electric shock that inflicted upon her serious personal injury. A trial was had, and a verdict rendered for her in the sum of $10,000. Afterwards a remittitur was entered for one-fourth that sum, and judgment thereupon rendered for $7,500.

It was shown by evidence in plaintiff's behalf that the telephone instrument was resting on a piano in the month of the house where she lived; that in the month of June, 1915, while alone in the hall, all doors and windows being closed except the door leading to the dining room, she undertook to telephone while standing on the third step of a stairway leading to the second floor. She took up the instrument with her right hand with her fingers around the metal hook in which the receiver is put when in place, holding the receiver to her left ear with her left hand. She called her father-in-law's residence and central repeated the number, but she could get no further response, and, after waiting about five minutes, she claims that she received an electric shock so severe as to render her immediately unconscious, remaining practically in that condition for about two days. She did not remember of feeling the shock. Whether this was from the fact that the shock and unconsciousness were coeval, or that a shock of that severity will blot out memory, did not appear in evidence with any degree of satisfaction; but it did appear that the sufferer from such an injury will frequently have no memory of it whatever.

The family physician was summoned and arrived in about 30 minutes. He found her in bed. He testified that he found her suffering from a severe electric shock; that the skin of her body was of a greenish hue; that the left side of her chest and left arm presented a peculiar dark-colored stripe, her respiration was low, and her heart action much depressed. These things were shown to be indications of an electric shock. It was several days before she could lift her left arm and leg, and she suffered much pain.

Plaintiff's case is based on the rule of res ipsa loquitur, and defendant insists that there was no sufficient proof of the injury being inflicted through use of its instrument, and therefore there was no basis for the application of the rule, but that, even conceding there was sufficient evidence in that respect, it destroyed the presumption thus raised against it by showing itself to be, in point of fact, free from any negligence.

The evidence was abundant that plaintiff's injury was caused by an electric shock; and it was well near as strong (if we allow for legitimate inferences) that the electricity was that artificial electric current used by defendant in running its plant. And in addition to this the proof was such that, even though the current was the natural kind manifested in storms (there was some evidence of electric disturbance), yet defendant was negligent in not having in proper use the equipment which protects telephone instruments and patrons from lightning. So in any event a case was made against defendant. For applying the rule res ipsa loquitur to the evidence it raised the presumption of defendant's negligence, and made a prima facie case for plaintiff which the jury has not believed defendant has explained away.

But defendant insists the statement that plaintiff has proven she received her Injuries from an electric shock is based on a presumption which itself is based on a presumption. In carrying this position forward into an argument counsel has practically destroyed all proof by circumstantial evidence or by reasonable inferences. We state his position in his own words:

"Defendant's connection with the injury, therefore, rested entirely upon the presumption, based upon plaintiff's symptoms that she had received an electric shock; the presumption based upon this presumption and upon the fact that she was using the telephone, that she received this shock from defendant's telephone; and upon the presumption based upon these presumptions that there was an extraordinary current on defendant's line (ordinary telephone currents having been admitted to be harmless); and upon the presumption based upon these presumptions that this extraordinary current in some way escaped from defendant's telephone and injured plaintiff. Proof of defendant's connection with plaintiff's injury therefore rests entirely upon presumption."

It will be readily observed that in such statement all difference between a presumption and proof by circumstances or inferences is disregarded. We think it clear that if one thing follows another as the effect of that other, proof of the first may be allowed by the jury to prove the second. It is said In 1 Jones on Evidence, p. 59, that:

"There seems to be no excuse for regarding presumption and inference as synonymons. * * * The difference is that a presumption is a mandatory deduction, while an inference is a permissible deduction which the reason of the jury makes without an express direction of law to that effect. * * * An inference is nothing more than a permissible deduction from the evidence, while a presumption is compulsory and cannot be disregarded by the jury. * * * Inasmuch as a presumption is the deduction which the law expressly directs to be made from particular facts, and an inference is a deduction which may be made from any facts legally proved, * * * it seems well-nigh impossible that, with any regard to reasonable accuracy, the error of continued confusion should be perpetuated."

The same author (vol. 1, p. 64) quotes with approved from Stover v. People, 56 N. Y. 315:

"The distinction between a presumption of law and of fact is that the former is to be declared and applied by the court in all cases where the facts raising it are established; and the latter is a question for the jury, who are to exercise their judgment in the particular case and find the fact, if satisfied of its truth; or, if not so satisfied, refuse to find it."

The author then continues:

"Presumptions of law are usually founded upon reasons of public policy, social convenience, and safety which are warranted by legal experience of courts in administering justice. The court must always instruct the jury as to the force and effect of legal presumptions. Presumptions of fact must always be drawn by a jury." 1 Greenleaf, Evidence, 107, 144.

It is well said in the brief for plaintiff that, having shown by legal evidence the cause of plaintiff's injury to have been an electric shock received from defendant's telephone instrument, a presumption of other additional matter arises, viz, negligence of the defendant. That is to say, the rule of res ipsa loquitur finds application.

And that such rule may be applied to such character of case, that is, to injuries received from such source, is...