Losh v. Ozark Border Elec. Co-op.

• Citation: 330 S.W.2d 847
• Decision Date: 11 January 1960
• Docket Number: No. 47344,No. 2,47344,2
• Parties: Thelma LOSH, Respondent, v. OZARK BORDER ELECTRIC COOPERATIVE, Appellant
• Court: United States State Supreme Court of Missouri

Page 847

330 S.W.2d 847

Thelma LOSH, Respondent, v. OZARK BORDER ELECTRIC COOPERATIVE, Appellant.

No. 47344.

Supreme Court of Missouri, Division No. 2.

Jan. 11, 1960.

Wangelin & Friedewald, Poplar Bluff, for appellant.

Dalton & Treasure, Kennett, Byron Kearby, Poplar Bluff, for plaintiff (respondent), Thelma Losh.

EAGER, Judge.

Plaintiff, the widow of Woodrow Losh, was awarded a verdict and judgment of $25,000 for the death of her husband, allegedly due to defendant's negligence. Following the overruling of after-trial motions, this appeal was taken. Many of the formalities, as well as some substantive facts, have been stipulated, and the issues have been narrowed.

Decedent (whom we shall refer to as Losh) owned a forty-acre farm five or six miles west of Malden, Missouri, and lived there with his family. He farmed this place, but also worked at the Malden Grain Company more or less regularly. Beginning early in 1957, he took several months off from his work at the Grain Company and, with the help of his nephew, built a new house on his place. These two did substantially all the work themselves except for the electric wiring, which was the cause of the present difficulty. Losh employed Kenneth Stegall of Malden to wire the house at a price of $1 per outlet for his labor, Losh to furnish all material. This work was started around February 1, 1957, when the walls were only partially completed and the roof was being put on; it was completed on or before March 2, except that Stegall went back a day or two later and put in a ground wire which defendant required. Stegall had had no formal training as an electrician, but he had wired 'several houses' at Malden; Losh told him where he wanted the various plugs, switches, etc., but did not attempt to supervise his work. During the construction Losh was receiving temporary service from defendant, with the meter attached to a pole. Stegall testified specifically; that a floor furnace had been installed between February 1 and March 2, and that it was burning one day while he was working there; this was located in a hallway just outside the utility room door, and it was being operated from a drop cord extension carried under the floor; that he put in a switch for this furnace on the utility room wall, and more or less behind the door. The wiring of that switch will be discussed later, as it is very material. Stegall was paid $33 by check dated March 2, 1957, which amount included a charge of $1 for the installation of the furnace switch; he installed small wires in a wall for a thermostat; from his testimony it would appear that the thermostat was not connected up at that time.

The plaintiff testified that the floor furnace was installed during February 1957 an invoice or statement dated 2-15-57 from a store in Malden showed the purchase of a floor furnace, along with other items. Plaintiff also testified: that they moved into the house on March 4 and used the furnace when they needed heat; on these occasions they used an extension cord for current; that there was a switch for the floor furnace, behind the utility room door, and that this was put in 'when the rest of the house was wired'; that a thermostat was installed by Stegall in the living room; when they moved in the lights were working satisfactorily; that she never had occasion to turn the furnace switch on or off. Plaintiff worked at a garment factory in Malden and last saw her husband at noon on September 18, 1957, when he had lunch with her in town.

Omitting many details of the evidence, we note that Losh was found dead on the night of September 18, 1957, lying on the damp ground under his house near the floor furnace, with his hands clasped on a pair of pliers or wire cutters, which, in turn, were in a cutting position on the wire in a 'Romax' cable. It is agreed that Losh died by electrocution; the current in the cable was only 110 volts. This cable had been carried down through the floor as the permanent electrical connection for the furnace; its lower end had been left loose and it was approximately two and one-half feet too long. It is obvious that Losh was attempting to shorten this cable so as to make it fit more readily. The cable consisted of two wires, one covered with black rubber insulation and one with white, with both wires contained in a heavier insulation; it averaged about one-fourth inch in diameter. Losh's hands were burned. He had told his wife that he was going to wrap some water pipes under the house that afternoon.

Defendant's liability rests upon an alleged negligent inspection of the wiring in the house on April 1, 1957, and specifically upon a failure to inspect and test the furnace switch. In this situation, the evidence to show the presence of the switch at that time, as well as the method in which it was wired, is highly material. In addition to the testimony of Stegall and plaintiff, already referred to, Glen Kinder, plaintiff's brother, testified that the furnace was installed in February 1957, and that it was operating when the Loshes moved in, being then hooked up by an extension cord; also, that the furnace switch was installed with the other wiring, and that he had seen it before April 1; that there were 33 outlets in the house in all. Defendant's regular inspector, Alvin M. Woodrum, inspected the wiring on April 1, 1957, prior to the furnishing of regular service, and in accordance with defendant's usual practice; he certified that the wiring conformed to the minimum standards required by defendant (which incorporated those of the National Electrical Wiring Code and certain supplemental requirements). Woodrum testified: that he de-energized the entire house, checked the outside wiring and the breaker box, disconnected all bulbs and appliances, and with a portable meter made a 'polarity' test on every outlet, including switches and wall plugs; that if the wiring in an outlet had been improper, there would have been a negative reading on the meter and that he would either have corrected the defect himself or would have ordered it corrected; that this test would determine whether the 'hot' or 'cold' lead had been wired into a switch. Defendant was paid $4.50 by Losh for this inspection. Woodrum further testified that if a thermostat had been installed it would have shown a resistance observable to him, which was not shown. The gist of his testimony is, so far as we are concerned, that he saw no furnace switch or lead, tested no such switch, and saw no floor furnace. (From this it was argued that the furnace and switch had not been installed at that time.) Woodrum testified initially, in substance, that if such a switch was wired correctly there would be no current beyond the switch when it was 'off.' This was confirmed by Clarence Berry, another electrician. When recalled by defendant. Woodrum testified that there 'could be' some current in the cable beyond the switch with the circuits in use, even if the switch was operating properly, depending upon 'the load that was on the same circuit of the wiring.' The explanation of this is somewhat complicated, at least to one naive on the subject of electricity. Kenneth Stegall, who wired the house, was a carpenter in Arkansas at the time of trial. In addition to what has already been related, he testified in part: that he installed the floor furnace switch prior to March 2, and ran the cable leading from the switch under the floor, leaving it free there; that the switch was an ordinary wall switch, covered with a plate, and having an 'on' and 'off' lever or handle; that a black wire and a white wire came down to this switch from the ceiling in a Romax cable; one was the 'hot' wire, and one was the cold or neutral wire (at his deposition he was not sure which was the 'hot' one); that in wiring this switch he used the same wire for the 'hot' wire as he did in the rest of the house, but that it 'could be wired up backwards' and he would not say that 'it was or it wasn't'; at another point he testified that he didn't know whether the switch was wired properly, but that a polarity test would determine whether it was or not. He testified further: that he did not check the wiring generally, or this particular switch, after its completion; that he ran wires for a thermostat (but with some possible contradiction as to whether a thermostat was actually installed by him); that if a proper furnace switch was wired correctly and was turned to 'off,' there would be no current flowing through the switch to the wire beyond. Clarence Berry, an electrician of Malden, came to the scene about 1:00 a. m. on September 19, cut off all current to the house, cut Losh loose and helped pull him out. On the next day, the 20th, he examined the furnace switch, pulling it out of its box. He found: that no part of the 'hot' wire had been connected to the switch, but that it simply went 'straight through,' although it had been cut, soldered together and taped; the solder had not been broken and the tape was dry, not waxy; that the 'ground' wire was the one which had been connected to the switch; that the 'hot' lead was 'going by the switch,' and that there would be electricity all the way to the end of that wire; or, in other words, that there would be current at the point where Losh was trying to cut the wire; that if the switch had been connected into this hot lead, and the switch worked properly, there would have been no current there; that the switch itself seemed to be in good operating condition. The pliers Losh was using were not insulated, and he did not have on rubber gloves. The furnace burned gas, and the purpose of the wiring was to activate a fan or the thermostat, or both. The voltage in this wire was 110, or ordinary household current. This witness testified specifically that a polarity test on this switch would have disclosed that the 'hot' lead was not connected to the switch.

With reference to the position of the switch (on or off),...