Mollman v. Union Electric Light & Power Co.

• Decision Date: 04 January 1921
• Citation: 227 S.W. 264,206 Mo.App. 253
• Parties: MARGARET MOLLMAN, Respondent, v. UNION ELECTRIC LIGHT AND POWER COMPANY, Appellant
• Court: Missouri Court of Appeals

227 S.W. 264

206 Mo.App. 253

MARGARET MOLLMAN, Respondent, v. UNION ELECTRIC LIGHT AND POWER COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

January 4, 1921

Rehearing Denied 206 Mo.App. 253 at 262.

Appeal from the Circuit Court of the City of St. Louis.--Hon. Wilson A. Taylor, Judge.

AFFIRMED.

Judgment affirmed.

Jourdan Rassieur & Pierce and Chauncey H. Clarke for appellant.

(1) The court erred in refusing to give to the jury the instruction in the nature of a demurrer to the evidence requested by defendant, for the reason that plaintiff made no showing entitling her to have the case submitted to the jury. (a) The act of the meter reader in entering the kitchen, hastily and without knocking, for the purpose of reading the meter located therein, was neither unlawful nor wanton. It was not unlawful, for the reason that plaintiff's husband, Peter Mollman, in his contract with defendant for electric service had agreed that defendant's said meter reader should at all reasonable times have free access to the meter. C. F. Adams Co. v. Sanders, 23 Ky. L. R. 1978, 66 S.W. 815; Hitchcock v. Essex & Hudson Gas Co., 71 N.J. L. 565; Bradley v. Sobolewsky, 91 Conn. 492, 2 A. L. R. 1387; Vanderberg v. K. C. Missouri Gas Co., 126 Mo.App. 600; Wilmerding v. Rhodes-Haverty Furn. Co., 122 Ga. 312; North v. Williams, 120 Pa. 109; W. T. Walker Furn. Co. v. Dyson, 32 App. Cas. (D. C.), 90. It was not wanton, for the reason that the meter reader in so entering the kitchen neither committed an unlawful act nor an act which he at the time knew to be unlawful. A showing of both these elements is essential to a showing of wantonness. Trauerman v. Lippincott, 39 Mo.App. 478; Peak v. Taubman, 251 Mo. 390. (b) Even if the act of the meter reader in entering the kitchen hastily and without knocking was unlawful, such unlawful act where, as here there was no showing made of contemporaneous physical injury, did not constitute a basis for the recovery by plaintiff of damages for fright or personal injuries resulting from fright, for the reason, since there was no showing made that such unlawful act was "accompanied by circumstances of malice, insult or inhumanity," that a recovery of such damages is contrary to public policy. Spade v. Lynn & Boston R. Co., 168 Mass. 285; McCardle v. Peck Dry Goods Co., 195 S.W. 1034; Trigg v. St. L. K. C. & N. Ry. Co., 74 Mo. 147; Deming v. Chicago, R. I. & P. Ry. Co., 80 Mo.App. 152; White v. Sander, 168 Mass. 296; White v. Dresser, 135 Mass. 150; Case Note, 30 Am St. Rep. 712; Strange v. Mo. P. Ry. Co., 61 Mo.App. 586; Smith v. Postal Tel., etc., Co., 174 Mass. 576; Mitchell v. Rochester Ry. Co., 151 N.Y. 107; Haas v. Metz, 78 Ill.App. 46; Nelson v. Crawford, 122 Mich. 466; Phillips v. Dickerson, 85 Ill. 11, 16, 28 Am. Rep. 607; Miller v. Baltimore & Ohio S.W. R. Co., 78 Ohio St. 309; Anderson v. Taylor, 56 Cal. 131; Ewing v. Pittsburgh C. & St. L. Ry. Co., 147 Pa. 40. The fact that, according to her testimony, plaintiff fainted as a result of the fright, thereupon struck her left side against the sewing-machine and thereafter suffered pain in her left side, did not constitute a contemporaneous physical injury, for the reason that it was "not occasioned by any material or other force prior to the fall," and the fall was the result of a purely mental cause, namely, fright. Spade v. Lynn & B. R. Co., 168 Mass. 285; McCardle v. Peck Dry Goods Co., 195 S.W. 1034; Chittick v. Philadelphia Rapid Transit Co., 224 Pa. 13; Bachelder v. Morgan, 179 Ala. 339; Driscoll v. Gaffey, 207 Mass. 102; Hess v. American Pipe Manufacturing Co., 221 Pa. 67. (2) The court erred in giving, on behalf of plaintiff, instruction No. 1, which covered her case and directed a verdict, for the reason that it narrowed the issues, in that the petition alleged that her injuries were caused by a wanton act, whereas the instruction permitted a recovery if the jury found that the meter reader, "in disregard of plaintiff's rights in her home and without permission, opened the kitchen door with great force," without requiring a finding of and entirely ignoring the issue of wantoness. Delfosse v. United Rys. Co., 201 S.W. 860; State ex rel. Long v. Ellison, 199 S.W. 984; Hall v. Manufacturers' Coal & Coke Co., 260 Mo. 351; Wojtylak v. Coal Co., 188 Mo. 260. (3) The court erred in giving, on behalf of plaintiff, instruction No. 1, which covered her case and directed a verdict, for the reason that it narrowed the issues, since if to injure her left side in fainting by striking it against the sewing-machine would be a "contemporaneous physical injury," then that she did so injure her left side constituted an essential fact the finding of which was a condition prerequisite to her right of recovery, and this instruction permitted a recovery if the jury found that plaintiff was caused "to become greatly frightened, to fall and lose consciousness, and thereafter to suffer from nervous prostration or hysteria," without requiring a finding of and entirely ignoring the issue of whether in fainting she injured her left side. See cases cited under Point 2.

John C. Robertson for respondent.

(1) One who commits a trespass on the property of another is liable for the consequences resulting from fright and affection of the nervous system. Sutherland on Damages, sec. 1029; Bouillon v. Gas. Co. 148 Mo.App. 462; Watson on Personal Injuries, sec. 495; Kimberly v. Howland, 143 N.C. 404; May v. Telegraph Co., 157 N.C. 416; Kirkpatrick v. Critchfield, 178 N.C. 348; Fleming v. Knitting Mills Co., 161 N.C. 436; Shallenburg v. Morris, 115 Mo.App. 566; Heidberger v. Railroad, 133 Mo.App. 452; Jackson v. Tel. Co., 139 N.C. 347; Sanders v. Gilbert, 156 N.C. 463; Delzell v. Hotel Co., 193 Mo.App. 379; McCardle v. D. G. Co., 191 Mo.App. 263. (2) It is not necessary for the plaintiff to prove that the defendant's servant intended to frighten or to injure plaintiff; if the entry was unlawful defendant is responsible for the resulting damages even though they were not intended. Ikenroth v. Transit Co., 102 Mo.App. 597; Brennan v. Halters, 9 L.R.A. (N. S.) 254; Kavanaugh v. McIntyre, 112 N.Y.S. 987; Wingate v. Bunton, 193 Mo.App. 479; McMillan v. Elder, 160 Mo.App. 46; McNamara v. Transit Co., 182 Mo. 676; Beck v. Railroad, 129 Mo.App. 7-22; Southern Railroad Co. v. McIntyre, 169 Ala. 42; Railroad Co. v. Ricker, 116 Ill.App. 428; Palmer v. Smith, 147 Wisc. 70; Bouillon v. Gas. Co., 148 Mo.App. 462; Wyant v. Crouse, 53 L.R.A. 626; Hickey v. Welch, 91 Mo.App. 4; McAfee v. Crofford, 54 U.S. 447; Lesch v. Great Northern Ry., 93 Minn. 435; Brownback v. Frailey, 78 Ill.App. 262; Preiser v. Wielandt, 48 A.D. 569; Larson v. Chase 47 Minn. 307; Meagher v. Driscoll, 99 Mass. 281. (3) Even though the defendant had a license to enter plaintiff's home to read the meter, it must at least apply for permission to enter, and this license is, under no circumstances a justification for defendant's agent to enter without the ordinary courtesy of knocking. Collins & Co. v. Marcy, 25 Conn. 239; Foot v. New Haven Co., 23 Conn. 214; Pratt v. Ogden, 34 N.Y. 20; Seldon v. Delaware Canal, 29 N.Y. 634; Sherman Line v. Glenn Falls, 110 A.D. 269; Cook's Case, Cro. Car. 637; Oystead v. Shed, 13 Mass. 520; 3 Bl. Com. 288; Sec. 5052 R. S. 1909; May v. Telegraph Co., 157 Cal. 416.

NIPPER, C. Reynolds, P. J., Allen and Becker, JJ., concur.

OPINION

NIPPER, C.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff, and caused by trespass by a "meter reader" who was at the time an employee of defendant, and in the discharge of his duties as such. Plaintiff recovered judgment in the sum of $ 500, and defendant appeals, urging two assignments of error as grounds for reversal: First, that the court erred in not directing a verdict for defendant; second, that the court erred in giving instruction No. 1 for plaintiff.

The facts are brief. In the forenoon of March 8, 1917, between ten o'clock A. M. and noon on that day, the defendant's "meter reader," a young man about seventeen years of age, went upon the premises known as 4147 Pleasant Street, St. Louis, for the purpose of reading the meter that had been placed in this house under and by virture of the terms of a written contract which had been entered into prior to this date, between plaintiff's husband and the defendant. It is provided by the terms of this contract "that the duly authorized agents of the company shall have free access to the meters and service at all reasonable times, and for any and all purposes incident to this agreement and may also have access at all reasonable times to the premises for the purpose of examining the consumer's connected load. The employees of the company may, upon failure of the consumer to comply with any of the rules of the company, remove its meters and service and discontinue the supply." The husband was not at home at the time. There was also a daughter living at this home but she was employed and was not present. At the time of the alleged trespass, plaintiff was in the kitchen of her home, standing near the sewing machine preparing to do some sewing. The meter was located in this kitchen. With plaintiff in the kitchen were two small children, one eight and the other four years of age. Plaintiff stated that at this time the "meter reader" opened the kitchen door, which was fastened, or as she described it, "burst right into the door" without knocking or announcing his presence in any manner. At the time he did this she states that she exclaimed: "My God! Why didn't you knock?;" that the "meter reader" stepped over to the meter and announced: "Union Electric. " Plaintiff was about three feet away from the door at this time. She didn't know the man, and had no knowledge of his presence about the...