Martin v. Springfield City Water Co.

• Decision Date: 01 May 1939
• Docket Number: No. 5980.,5980.
• Citation: 128 S.W.2d 674
• Parties: MARTIN v. SPRINGFIELD CITY WATER CO.
• Court: Missouri Court of Appeals

128 S.W.2d 674

MARTIN v. SPRINGFIELD CITY WATER CO.

No. 5980.

Springfield Court of Appeals. Missouri.

May 1, 1939.

Rehearing Denied June 1, 1939.

Appeal from Circuit Court, Christian County; Robert L. Gideon, Judge.

"Not to be published in State Reports."

Action by Jesse J. Martin, by next friend, Ernest Martin, against the Springfield City Water Company for injuries allegedly sustained as result of defendant's failure to supply the plaintiff with pure, safe, and uncontaminated water for drinking purposes. From an adverse judgment, the defendant appeals.

Reversed and remanded for another trial.

G. Purd Hays, of Ozark, J. H. Ingenthron, of Forsyth, and Neale & Newman and Flavius B. Freeman, all of Springfield, for appellant.

A. B. Lovan and Joseph N. Brown, both of Springfield, and Tom Moore, of Ozark, for respondent.

SMITH, Judge.

This cause originated in the Circuit Court of Greene County, by a petition filed therein returnable to the January, 1937, term. The cause was transferred on change of venue to the Circuit Court of Christian County, where a trial by court and jury resulted in a verdict for the plaintiff in the sum of $2,999, at the September, 1937, term of that court, upon which, judgment was entered accordingly. After an unsuccessful motion for a new trial, the defendant perfected its appeal to this court.

Plaintiff's second amended petition charged that the defendant owned and operated a water plant in Springfield and supplied water to the inhabitants thereof for profit; that the defendant was duty bound to use reasonable care to supply the people of Springfield with pure, safe and uncontaminated water for drinking purposes; and that, because of the following specific acts of negligence alleged against the defendant, the plaintiff, a minor, contracted typhoid fever in July, 1936, resulting in injuries for which he sued. The following acts of negligence were alleged:

"(1) That section 5189, Revised Statutes of Missouri 1929, Mo.St.Ann. § 5189, p. 6605, provides in part, that: Every gas corporation, every electric corporation, every water corporation, and every municipality shall furnish and provide such service instrumentalities and facilities as shall be safe and adequate.

"And plaintiff, by his next friend, says that the defendant carelessly and negligently and in violation of the aforesaid statute failed to provide water for drinking purposes which was safe for human consumption, but on the contrary furnished water which was polluted, contaminated, and dangerous for human consumption and by reason thereof that during the month of July, 1936, that the plaintiff drank said water without knowledge of its dangerous condition and that on or about the ____ day of July, 1936, contracted illness which developed into typhoid fever and as a result thereof he was injured and damaged as herein set out.

"(2) Plaintiff, by his next friend, states that the defendant negligently distributed water from contaminated sources into its mains and pipes which mains and pipes carried water directly to consumers, without first having properly treated it to destroy disease producing germs or to have properly tested same to ascertain whether or not said water was contaminated with disease producing germs.

"(3) That although the defendant had knowledge or by the exercise of reasonable care should have had knowledge of the contaminated, polluted, and dangerous condition of its water, which it was furnishing to the inhabitants of the City of Springfield, Missouri, including this plaintiff, for human consumption, that the defendant carelessly and negligently failed to exercise reasonable care to promptly combat, correct, and remedy said contaminated condition of its said water by the use of sufficient chlorine or other chemicals, filtration, or by purification means and methods, to purify said water; and plaintiff, by his next friend, says that by reason of said negligence of the defendant, its said water which it was distributing as aforesaid was negligently allowed and permitted to be distributed in said contaminated and polluted condition, in and through its mains, pipes, and connections to the water users of Springfield, Missouri, including this plaintiff, that in consequence of the negligent act or acts of the defendant as aforesaid, acting separately or concurrently, that during the months of June and July, 1936, that the plaintiff drank said water without the knowledge of its dangerous condition and that on or about the ____ day of July he contracted illness which developed into typhoid fever and by reason thereof he was injured and damaged as herein set out.

"(4) Plaintiff, by his next friend, says that the defendant had knowledge or by the exercise of reasonable care could have had knowledge that said water, which it was furnishing to the water users of Springfield, Missouri, including this plaintiff for drinking purposes during June and July, 1936, was polluted and contaminated with disease producing bacilli, but that the defendant negligently failed to warn the users of said water, including this plaintiff, that said water was unsafe for human consumption and that before using said water for human consumption that it should be boiled or other precautionary methods applied to said water, but that the defendant negligently failed to warn the public or this plaintiff of the dangerous condition of said water, and plaintiff, by his next friend, says that he, without the knowledge of the said dangerous condition of said water, drank said water as aforesaid furnished by the defendant for that purpose and in consequence thereof on or about the ____ day of July contracted illness which developed into typhoid fever and because of resulting serious illness he was injured and damaged as hereinafter stated.

"(5) Plaintiff, by his next friend, says that the defendant carelessly and negligently failed to have and maintain at its plant at Springfield, Missouri, during the times herein stated, a competent bacteriologist or water experts, who were readily available to make regular and emergency analysis and tests of its water which it was furnishing to the inhabitants of the City of Springfield, Missouri, during the times herein mentioned, for the purpose of discovering whether or not its said water was safe for human consumption; and plaintiff, by his next friend, says that the defendant failed at times herein stated to use reasonable care to ascertain the safe or dangerous condition of its water which it was furnishing to the water users of Springfield, Missouri, including this plaintiff, and by reason of said negligence the plaintiff was injured and damaged as herein stated.

"Plaintiff, by his next friend, says that by reason of said illness caused by the negligence of the defendant as aforesaid, that he had to have medical attention and that he was dangerously ill for a long period of time and that he became weakened and his body wasted away and that he suffered severe mental anguish and physical pain and that his said physical and mental injuries and conditions were directly caused by the carelessness and negligence of the defendant as aforesaid, and that said injuries still continue and are likely to be permanent, and that by reason of said illness it became necessary for him to incur obligations for large sums of money to the extent of ____ Dollars for medical and hospital attention and treatment, and that by reason of said cost for medical attentions and injury and damage to his health that he has been damaged in the sum of Two Thousand Nine Hundred and Ninety-Nine ($2,999.00) Dollars.

"Wherefore, plaintiff asks judgment against the defendant for the sum of Two Thousand Nine Hundred and Ninety-Nine ($2,999.00) Dollars."

The defendant filed answer to the amended petition, a part of which was stricken by the court, which left the answer practically that of a general denial.

The case is presented to us under several assignments of error, which we shall consider in the order presented, and in considering these points, we shall give such statement of the facts as presented by the evidence as we may deem necessary.

The evidence shows that the plaintiff suffered for several weeks with typhoid fever in the summer months of 1936, and that Dr. G. B. Lemmon of this city treated him while he was sick. The first assignment is that the court erred in permitting Dr. Lemmon to answer hypothetical questions giving it as his opinion that the plaintiff contracted typhoid fever from defendant's water, for the following expressed reasons:

"(a) Because the question assumed the existence of large numbers of typhoid fever cases during July at the time plaintiff contracted his typhoid fever, when in fact, there was no evidence to that effect and in fact, the evidence was to the contrary, and

"(b) Because after plaintiff had admitted that he was not qualified to give an epidemiological opinion, the court refused to strike out the question."

The second assignment is complaint as to permitting Dr. Zeigler to answer hypothetical questions giving it as his opinion that defendant acquired typhoid fever from defendant's water. It is contended that the question assumed (a) that there were 114 cases of such fever in Springfield during the latter part of July; (b) that during the latter part of July there were found in the water, germs which would cause typhoid fever; (c) that upon complaint made by city officials and by individuals, the defendant increased the chlorine in the water. It is also claimed that the question also assumed that after the defendant had done certain things there was no more typhoid, and without specifying what those "certain things" were; and (d) that B. Coli continued to exist in the water until the middle of August.

These two assignments are considered together by the defendant in its brief and argument, and it is contended that there was no testimony justifying the assumptions in the hypothetical...