Morrow v. Missouri Gas & Electric Service Company

• Decision Date: 30 July 1926
• Docket Number: 25382
• Citation: 286 S.W. 106,315 Mo. 367
• Parties: Lulu E. Morrow v. Missouri Gas & Electric Service Company, Appellant
• Court: Missouri Supreme Court

286 S.W. 106

315 Mo. 367

Lulu E. Morrow v. Missouri Gas & Electric Service Company, Appellant

No. 25382

Supreme Court of Missouri

July 30, 1926

Appeal from Clay Circuit Court; Hon. Ralph Hughes, Judge.

Affirmed.

John H. Lucas, William C. Lucas, A. F. Wherritt and Ludwick Graves for appellant.

(1) The trial court erred in refusing to sustain the objection to the introduction of any testimony. The petition did not state facts sufficient to constitute a cause of action. Brown v. Mobile Electric Co., 207 Ala. 61, 91 So. 802. (2) The trial court erred in refusing to grant the demurrer to the evidence and the peremptory instruction, for under the pleadings and the evidence there was no actionable negligence against the appellant. (a) The evidence of the respondent is so vague, uncertain and speculative that it does not constitute actionable negligence against appellant; there is no actual proof that any excessive current was on the drop cord in the basement of Dr. Morrow's home the night he met his death. State ex rel. Mo. Pub. Util. Co. v Cox, 298 Mo. 427; Hamilton v. Ry. Co., 250 Mo 714; Hays v. Hogan, 273 Mo. 1, 25. To hold liability in this case runs counter to the rule that inference cannot be piled upon inference nor presumption upon presumption to establish a fact necessary to be proven. State ex rel Mo. Pub. Util. Co. v. Cox, 298 Mo. 432; Hamilton v. Railroad, 250 Mo. 722; Swearingen v. Railroad, 221 Mo. 659; Yarnell v. Railroad, 113 Mo. 580. (b) Where the evidence of plaintiff's claim is so vague and unsatisfactory the court in considering a demurrer to the evidence may also consider the evidence of the defendant. Flack v. Santa Fe Ry. Co., 285 Mo. 48; Jackson v. Hardin, 83 Mo. 185; Furber v. Bolt & Nut Co., 185 Mo. 301; Turner v. Anderson, 260 Mo. 29; Huffnagle v. Pauley, 219 S.W. 379. (c) Under all of the evidence there is no proof of any excessive current, but to the contrary that no excessive current entered the Morrow home on the night of August 23, 1921. Lawson v. Mobile Electric Co., 204 Ala. 318, 85 So. 257; Smith's Admr. v. Middlesboro Electric Co., 164 Ky. 46, 174 S.W. 773; Harter v. Colfax Electric Co., 124 Iowa 500; Kuhlman v. Water, Light & Transit Co., 271 S.W. 797. (d) Where the accident, as in this case, could have occurred from a number of causes, only one of which the defendant could have been liable for, then the plaintiff must show with reasonable certainty that the cause for which the defendant is liable produced the result, and if the evidence leaves it to conjecture, as is the fact in the case at bar, the plaintiff must fail in the action. Warner v. Railroad, 178 Mo. 125; Coin v. Lounge Co., 222 Mo. 488; Graefe v. Transit Co., 224 Mo. 232; State v. Goodson, 299 Mo. 321. The appellant could not have been liable for the normal 110 volt current escaping through Dr. Morrow's own wiring, causing a shock, fall and fracture of the skull from which he might have died. 1 Joyce's Electric Law (2 Ed.) p. 740, par. 445; Minneapolis G. E. Co. v. Cronon, 166 F. 661; Kuhlman v. Water, Light & Transit Co., 271 S.W. 796. (e) The theory of the case submitted by the respondent is against the physical facts. Waldmann v. Skrainka Con. Co., 233 S.W. 247. (3) The trial court erred in admitting incompetent, irrelevant and immaterial evidence on the part of the respondent. (a) In admitting evidence of slight shocks of four witnesses received off of isolated fixtures in their homes, said evidence being without the issues, incompetent, speculative and having no tendency to prove the issues between the parties. (b) In admitting evidence that appellant did not have a safety device known as a ground wire on the circuit feeding the Morrow home, the same being entirely without the issues. (c) In admitting the limbs of a tree with burned places on it, there being no evidence as to when the burns occurred; it was remote, speculative, unconnected and of no probative force. (d) In admitting testimony of the sparkling of wires in a tree; said testimony being speculative, unconnected, remote and did not tend to prove any issues between the parties.

James S. Simrall and Lawson & Hale for respondent.

(1) The petition clearly states facts constituting a cause of action, and the trial court did not err in overruling respondent's objection to the introduction of any testimony thereunder. Haseltine v. Smith, 154 Mo. 404; Goldsmith v. Candy Co., 85 Mo.App. 595; Heckfuss v. American Packing Co., 224 S.W. 99; White v. Railroad, 202 Mo. 539; Lafever v. Pryor, 218 S.W. 970; Thompson v. Lyons, 220 S.W. 942. (2) Under the pleadings and evidence plaintiff was entitled to submit her case to the jury on the question of defendant's negligence; and the trial court properly overruled defendant's demurer to the evidence. Solomon v. Moberly L. & P. Co., 303 Mo. 622; Lynch v. Meyersdale Power Co., 112 A. 58; Texas Power Co. v. Bristow, 213 S.W. 702; Secherman v. Wilkesbarre Co., 255 Pa. 11; Alabama Co. v. Appleton, 171 Ala. 324; Vessels v. K. C. Light & Power Co., 219 S.W. 80; Coleman v. Iowa Power Co., 178 N.W. 365; Washington Ry. Co. v. Dalaney, 288 F. 421; Welsch v. Light & Power Co., 193 N.W. 427; Haas v. Power Co., 93 Wash. 291; Power Co. v. Requena, 224 U.S. 89. (3) The trial court did not admit incompetent, irrelevant and immaterial evidence on the part of respondent. (a) Evidence of shocks received by neighbors of deceased, shortly prior to his death, and from the same secondary circuit supplying his home, was relevant and material testimony, and was clearly within the issues in the case. Texas P. & L. Co. v. Bristow, 213 S.W. 702; Adams v. United Co., 69 Pa.Super. Ct. 478; Lynch v. Meyersdale Co. (Pa.), 112 A. 58; Ohrstrom v. Tacoma, 57 Wash. 121, 106 P. 629; Light Co. v. Requena, 224 U.S. 89, 56 L.Ed. 680; Solomon v. Moberly L. & P. Co., 303 Mo. 622. (b) Evidence that defendant had no ground wire on the secondary circuit supplying deceased's home was relevant and material to the issues between the parties. (c) Plaintiff's Exhibit 12, which was the burned limb of a tree and which when removed from the tree was in contact with defendant's transmission lines in the immediate vicinity of deceased's home, was properly admitted in evidence. (d) Evidence of the sparkling of wires in trees was material and relevant to the issues, and was properly admitted. Kelly v. Higginsville, 185 Mo.App. 55; Solomon v. Moberly L. & P. Co., 303 Mo. 622.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Action by plaintiff (respondent) to recover damages for the death of her husband, Allen E. Morrow, because of the alleged negligence of defendant (appellant). The petition was filed on September 23, 1921, and alleges, in substance, that deceased met death on August 23, 1921; that he was survived by his widow and a minor son about two years of age, and that the suit is instituted within six months after deceased's death; that defendant was, at the time mentioned, engaged in furnishing and selling to consumers within the city of Liberty, Missouri, electricity for domestic and commercial uses, and maintained and operated a distributing system within said city, consisting of wires, poles and other equipment, for the purpose of transmitting electric current to and into private residences within said city for lighting and cooking purposes, and sold such electricity to such consumers for such purposes; that on August 23, 1921, and prior thereto, deceased was a consumer of electricity furnished by defendant through its said distributing system and said deceased used such electricity in his residence, located at the corner of Kansas and Lightburne Streets in said city, for lighting and cooking purposes; that, as a part of the lighting system of said residence, there had been installed in the basement a socket in the ceiling thereof, to which was attached an insulated drop cord, at the end of which was attached an ordinary light bulb; that electric current flowed from defendant's house-service wires on said Kansas Street through wires strung over the land on which deceased's residence was located and through the same into the electric wiring in said residence, and thereby electric current was brought into the wires inside of said residence, including the wires to which said drop cord and light bulb in the basement of said residence were attached at said socket; "that the said Allen E. Morrow, on the night of the 23rd day of August, 1921, whilst in the exercise of ordinary care and caution for his own safety and without negligence on his part, took hold of said drop cord in the basement of his residence, with the fingers of his right hand, for the purpose of moving the same from one place in said basement to another; that, at the time said Morrow so took hold of said drop cord, defendant and its servants and agents had carelessly and negligently caused or permitted said drop cord to become and be charged with electric current in such excessive quantities and of such high voltage as to be dangerous to anyone touching, or in any manner coming into contact with such drop cord, and by reason thereof, the said Allen E. Morrow, when he touched said drop cord, received an electric shock and thereby suffered death as a result thereof."

The answer is a general denial.

Deceased's residence was a one-story bungalow, with basement, at the southeast corner of the intersection of Kansas and Lightburne Streets in the city of Liberty. In the southeast corner of the basement was a shower bath, which had been used by deceased and his wife for a period of about two years. In another corner of the basement was a coal bin. Suspended from a plug or socket in the ceiling near the coal bin was an extension or drop cord with a light bulb, or lamp, on the end thereof. When using the shower bath, it...