Meeker v. Union Electric Light & Power Company

• Citation: 216 S.W. 923,279 Mo. 574
• Parties: PROSPER R. MEEKER, by HARRY MEEKER, Next Friend, v. UNION ELECTRIC LIGHT & POWER COMPANY, Appellant
• Decision Date: 17 November 1919
• Court: United States State Supreme Court of Missouri

216 S.W. 923

279 Mo. 574

PROSPER R. MEEKER, by HARRY MEEKER, Next Friend, v. UNION ELECTRIC LIGHT & POWER COMPANY, Appellant

Supreme Court of Missouri

November 17, 1919

Appeal from St. Louis Circuit Court. -- Hon. Rhodes E. Cave, Judge.

Affirmed.

Jourdan Rassieur & Pierce for appellant.

(1) The court erred in refusing to give the instructions in the nature of a demurrer to the evidence. Beave v. Transit Co., 212 Mo. 352; State ex rel. National Newspaper Assn. v. Ellison, 176 S.W. 11; Degonia v Railroad, 224 Mo. 564; State ex rel. v Ellison, 270 Mo. 645; Bank v. Murdock, 62 Mo. 70; Mansur v. Botts, 80 Mo. 651; Black v. Railroad, 217 Mo. 672; Tinkle v. Railway Co., 212 Mo. 445; Eads v. Galt Tel. Co., 199 S.W. 710; McGrath v. Transit Co., 197 Mo. 97. (2) The court erred in giving plaintiff's instruction numbered 1: (a) Because said instruction takes a wider range and is broader than the allegations of negligence in the petition. Authorities, supra. (b) Because said instruction uses the word "negligently" without any explanation or definition of its meaning, thus leaving the jury to apply its notions of what was intended by the use of the word. Raybourn v. Phillips, 160 Mo.App. 535. (3) The court erred in permitting the witness Meyer to testify to an alleged telephone conversation supposed to have been had with a representative of the company, although the witness admitted that he did not know whom he was talking to. Strack v. Telephone Co., 216 Mo. 614. (4) The court erred in refusing to set aside the verdict in toto because it was excessive, and because the judgment for $ 35,000 is still excessive. Campbell v. United Rys. Co., 243 Mo. 142; Partello v. Railroad, 217 Mo. 645; Chlanda v. Transit Co., 213 Mo. 244; Finnegan v. Mo. Pac. Ry., 244 Mo. 608, 261 Mo. 481; Freeman v. Tel. Co., 160 Mo.App. 271.

Henry G. Miller, Samuel W. Baxter and Charles E. Morrow for respondent.

(1) The plaintiff did not have to prove all the assignments of negligence, but only enough of the acts of negligence charged to make a case. Van Horn v. Transit Co., 198 Mo. 481; Newlin v. Railroad, 222 Mo. 393; Gannon v. Gas Light Co., 145 Mo. 511; Moyer v. Railroad, 189 S.W. 842; Spalding v. Met. St. Ry. Co., 129 Mo.App. 607; Dutro v. Met. St. Ry. Co., 111 Mo.App. 264; Hoffman v. Walsh, 117 Mo.App. 278; McMurray v. Oil & Gas Co., 159 Mo.App. 623; Yost v. Atlas, 191 Mo.App. 434; Mullery v. Tel. Co., 191 Mo.App. 126, 127. (2) The defendant negligently permitted the wires to become uninsulated and to break in two and fall to the surface of the alley. To make a case plaintiff did not have to prove that they were down for such a length of time that defendant knew or ought to have known it and remedied the danger. Hoover v. Railway Co., 159 Mo.App. 421; Booker v. Railroad, 144 Mo.App. 273; Heberling v. Warrensburg, 204 Mo. 618. (3) Where a petition charges that the defendant negligently committed a particular act, it furnishes the predicate for the proof of all incidental facts and circumstances, both of omission and commission which tend to establish the negligence of the primary fact complained of. Fisher v. Golladay, 38 Mo.App. 538; Olsen v. Railroad, 68 Minn. 155; Reynolds v. Van Beuren, 64 N.Y.S. 724; Henry v. Navy Yard Route, 94 Wash. 526; Kennedy v. Hawkins 102 P. 733 (Ore.) , 25 L.R.A. (N. S.) 606; Jones v. City of Portland, 35 Ore. 512; Ware v. Gay, 11 Pick. 106; McCauley v. Davidson, 10 Minn. 418; Clark v. Railroad, 15 F. 588; Grinde v. Railroad, 42 Iowa 376; Indianapolis Ry. Co. v. Keeley, 23 Ind. 133. (4) Plaintiff's instruction No. 1 was within the purview of both the petition and the evidence and has been approved. Booker v. Railroad, 144 Mo.App. 282. (a) Instruction No. 1 required the jury to find every fact necessary to make the defendant guilty of the negligence charged, and the fact that it used the word "negligently" without defining it does not render the instruction bad, for it states all the elements of actionable negligence. Sweeney v. Kansas City Cable Ry. Co., 150 Mo. 385; Mather v. Railroad, 166 Mo.App. 142; O'Leary v. Kansas City, 127 Mo.App. 77; Rattan v. Railway, 120 Mo.App. 279; Burns v. Railroad, 76 Mo.App. 342; Anderson v. American Sash & Door Co., 182 S.W. 820. (b) The meaning of the word negligently is well understood and no definition of it was necessary. Sweeney v. Kansas City Cable Ry. Co., 150 Mo. 401. (c) The word "negligently" used in this instruction without definition merely characterized the act and is not improper. Mather v. Railroad, 166 Mo.App. 149; Burns v. Railroad, 176 Mo.App. 330-342; Anderson v. American Sash & Door Co., 182 S.W. 820. (d) If the defendant desired a definition of the term "negligently," used in said instruction, it was its duty to ask an instruction defining it. Quirk v. Elevator Co., 126 Mo. 293. (e) But the defendant cannot complain of the alleged error, if any, in the use of the word "negligently" in this instruction, without defining it because the same term was used by the defendant in instruction A, given by the court at its request, in reference to the negligence of the defendant and was likewise so used in instruction 2, asked by the defendant and refused by the court. Quirk v. Elevator Co., 126 Mo. 279; Grocery Co. v. Smith, 74 Mo.App. 424; Herman v. Owen, 42 Mo.App. 392; Anderson v. American Sash & Door Co., 182 S.W. 820. (5) There was no total failure of proof in this case. On the contrary, the facts proven make the defendant liable for plaintiff's injury. It is not even contended that the facts proven, if found by the jury to be true, will not entitle the plaintiff to recover under the law. The evidence was admitted without objection or exception. The defendant remained silent and made no claim or affidavit of surprise, and does not even claim in its motion for new trial that its demurrer to the evidence should have been given. Under these circumstances, even if the evidence tended to prove a cause of action different in some respects from the one alleged in the petition, which we deny, the court should have treated the matter as an immaterial variance and submitted by instructions the question of liability in accordance with the proof made. R. S. 1909, sec. 1846; Chouquette v. Southern Elec. Ry. Co., 152 Mo. 257; Mellor v. Mo. Pac. Ry. Co., 105 Mo. 455; Ridenhour v. Kansas City Cable Ry. Co., 102 Mo. 270; Crawford v. Stock Yards Co., 215 Mo. 394; Harrison v. Lakeman, 189 Mo. 581; Chamlee v. Planters Hotel Co., 155 Mo.App. 158; Bowles v. Railroad, 167 Mo.App. 272; Hensler v. Stix, 113 Mo.App. 162; Litton v. Railroad, 111 Mo.App. 140; Parsons v. Quinn, 127 Mo.App. 525. (6) The court did not commit error in refusing to strike out the testimony of the witness Meyer. Wolf v. Railroad, 97 Mo. 473; Globe Printing Co. v. Stahl, 23 Mo.App. 451; Publishing Co. v. Warehouse, 123 Mo.App. 18. This evidence was competent, although the witness did not know the person to whom he was talking, just as much as if the witness had gone personally to the defendant's "trouble department" and talked to this same person in charge of it, whose name he did not know. Reed v. Railroad, 72 Iowa 166. (a) But defendant did not object to the question asked this witness at the time; made no objection to the admission of this testimony, but took the chance of a favorable answer, and when the answer came from the witness adverse to it, moved to strike out the testimony. The competency of this evidence was waived and the motion came too late. Roe v. Bank of Versailles, 67 Mo. 426; State v. Marcks, 140 Mo. 668; Mann v. Balfour, 187 Mo. 290; Maxwell v. Railroad, 85 Mo. 106; Foster v. Railroad, 115 Mo. 165; Drainage District v. Railroad, 266 Mo. 71; Lutz v. Met. St. Ry. Co., 123 Mo.App. 499; Thomas v. Met. St. Ry. Co., 125 Mo.App. 131; Utz v. Insurance Co., 139 Mo.App. 552; Osborn v. Railroad, 144 Mo.App. 119; Compressed Air Co. v. Fulton, 166 Mo.App. 27; Dehmer v. Miller, 166 Mo.App. 513. (b) The defendant nowhere assigned in its motion for new trial the refusal to strike out this testimony as an error and cannot raise the question now in this court. Salmons v. Railroad, 271 Mo. 402. (7) The verdict of $ 50,000 was not excessive and the judgment of $ 35,000, after remittitur, is not excessive. Finnigan v. Railroad, 261 Mo. 481; Corby v. Telephone Co., 231 Mo. 447, 448; Hill v. Union Electric Co., 260 Mo. 99; Clark v. Railway Co., 234 Mo. 396; Hollenbeck v. Railroad, 141 Mo. 113; Henderson v. Kansas City, 177 Mo. 477; Chitty v. Railroad, 166 Mo. 435; Dougherty v. Railroad, 97 Mo. 647; Hamilton v. Rich Hill Mining Co., 108 Mo. 364; Wald-hire v. Railroad, 87 Mo. 37; Scullin v. Railroad, 184 Mo. 695; Myers v. City of Independence, 189 S.W. 816; Miller v. Harpster, 201 S.W. 854; Salmons v. Railway Co., 197 S.W. 35; Breen v. United Rys. Co., 204 S.W. 52; Shaw v. Kansas City, 196 S.W. 1091; Hubbard v. Wabash Ry. Co., 193 S.W. 579.

WOODSON J. Blair and Graves, JJ., dissent as to amount of judgment.

OPINION

In Banc

WOODSON, J.

The plaintiff brought this suit in the Circuit Court of the City of St. Louis against the defendant, to recover the sum of seventy-five thousand dollars for personal injuries received by him through the alleged negligence of the defendant. The trial resulted in a judgment for the plaintiff in the sum of $ 50,000, which upon motion by the defendant was by the court reduced to $ 35,000. After taking the proper preliminary steps therefor, the defendant duly appealed the cause to this court.

The charging part of the petition was as follows:

"The defendant negligently and carelessly permitted one or more of its said wires then and there charged as aforesaid, to become uninsulated and broken in two, and to fall to the surface of said alley, and to remain broken in two and down then and there while fully charged...