Morton v. Southwestern Telegraph & Telephone Co.

Decision Date06 January 1920
Docket NumberNo. 21431.,No. 21432.,No. 20143.,20143.,21431.,21432.
PartiesMORTON v. SOUTHWESTERN TELEGRAPH & TELEPHONE CO. et al. (two cases). SAME v. HIRAM LLOYD BLDG. & CONST. CO.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

Action by Amanda L. Morton against the Southwestern Telegraph & Telephone Company, the Union Electric Light & Power Company, and the Hiram Lloyd Building & Construction Company. Judgment for plaintiff against the Hiram Lloyd Building & Construction Company and in favor of the remaining defendants. Motion for new trial was filed by plaintiff against such remaining defendants and by the Hiram Lloyd Buildig & Construction Company. The motions were overruled, and from the judgment both the Construction Company and plaintiff appealed to the Court of Appeals; a transcript of the judgment and order granting the appeal to plaintiff being sent to the Supreme Court by mistake. In plaintiff's appeal, the Telephone Company and the Power Company obtained an affirmance of the judgment, but the affirmance was set aside on motion of the Construction Company, and on plaintiff's motion in the Court of Appeals the cause involving both appeals was transferred to the Supreme Court. Judgment of trial court affirmed.

Safford & Marsalek, of St. Louis, for Amanda Morton.

Jones, Rocker, Sullivan & Angert, of St. Louis, for Hiram Lloyd Bldg. & Const. Co.

Jeffries & Corum, of St. Louis (D. A. Frank, of St. Louis, of counsel), for Southwestern Telephone & Telegraph Co.

Jourdan, Rassieur & Pierce, of St. Louis, for Union Electric Light & Power Co.

WHITE, C.

Two separate appeals from one judgment and one motion to affirm have been docketed as three cases by the above numbers, but by stipulation they are consolidated and considered together.

The plaintiff, Amanda L. Morton, brought suit in the circuit court of St. Louis against the Hiram Lloyd Building & Construction Company, the Southwestern Telegraph & Telephone Company, and the Union Electric Light & Power Company, seeking to recover damages on account of the death of her husband, caused, it is alleged, by the negligence of the three defendants. On trial by jury in the circuit court of St. Louis, a verdict was rendered in her favor in the sum of $7,500 against the defendant Hiram Lloyd Building & Construction Company and in favor of the other two defendants. A motion for new trial was filed by Amanda L. Morton as against the Southwestern Telegraph & Telephone Company, hereafter for convenience called the Telephone Company, and the Union Electric Light & Power Company, hereafter called the Power Company, and a motion for new trial was filed by the Hiram Lloyd Building & Construction Company, hereafter called the Construction Company. These motions were overruled at the June term, 1916. On June 28, 1916, the Construction Company appealed from the judgment against it to the St. Louis Court of Appeals, and a short transcript was duly sent to that court. At the same term, on September 29th, the plaintiff, Amanda L. Morton, appealed from said judgment to the St. Louis Court of Appeals and her appeal was duly allowed. A transcript of the judgment and order granting the appeal of the plaintiff, Amanda L. Morton, although ordered by the trial court sent to the St. Louis Court of Appeals, was sent to this court and appears here under the serial number 20143. Those transcripts thus vested in the two courts until July 24, 1918, when the respondents in the plaintiff's appeal, the Telephone Company and the Power Company, filed a joint motion to affirm in the St. Louis Court of Appeals, accompanied by the certificate of the clerk of the circuit court of the city of St. Louis, as provided by section 2047, R. S. 1909, showing that the judgment had been rendered, as stated above, and the appeal taken. This motion was by the St. Louis Court of Appeals on the same day sustained and the judgment affirmed. Three days later, July 27, 1918, the Construction Company, appealing defendant, filed a motion in said court to set aside the order of affirmance, with suggestions in support of same. To this the other defendants, Telephone Company and Power Company, filed suggestions in opposition. This motion, October 5, 1918, was sustained, and the order of affirmance set aside. On the 28th day of October, 1918, Amanda L. Morton filed her motion in the St. Louis Court of Appeals to transfer the cause involving both appeals to this court, and that motion was on November 19, 1918, sustained and the appeals transferred here, where they appear under numbers 21431 and 21432.

The death of Ernest L. Morton, husband of plaintiff, from which arose her claim for damages, occurred on the 26th day of November, 1915, while he was employed by the appellant Construction Company. The Construction Company, under contract with the city, was at the time engaged in the reconstruction and repairing of a reservoir owned by the city. The reservoir was located instituted what is known as Reservoir Park, a strip of park surrounding the two basins which constituted the reservoir. The Construction Company had built a fence around the reservoir, dividing the strip of park which surrounded it, and the work was being done inside this inclosure. A line of poles ran from the northwest corner of the property southwardly across the fence to a point inside the park, there being at least two of such poles inside the inclosure. These poles were from 25 to 30 feet in height, and each one supported two cross-arms about 18 inches apart. The upper cross-arms carried a telephone wire; the lower cross-arms carried three or four power wires which were charged with very high voltage of electricity. There was evidence tending to show that the telephone wire and upper cross-arms were owned by the Telephone Company. The defendant Power Company owned the power wires on the lower cross-arms and through them conveyed current to a transformer and a meter, where the current and power were delivered to the defendant Construction Company inside the inclosure. The Power Company had a contract with the Construction Company to furnish power for use in the work which the Construction Company was doing.

On the 12th day of November, 14 days preceding the death of Morton, the employés of the Construction Company, in the progress of their work, caused the first pole inside the inclosure to be broken off. A few days later this pole was replaced. On the 18th day of November, and 8 days before the death of Morton, the employés of the defendant Construction Company, while engaged in "fleeting a guy," that is, moving a guy line forward with a pile driver, broke the telephone wire inside the inclosure between the first pole inside and the first pole outside. The broken wire dropped down beside the first pole inside the inclosure, was gathered up by one of the Construction Company's employés, coiled up, and hung on the pole. It remained intact between the first and the second poles inside the inclosure. There is some evidence indicating later manipulation of the broken end in wrapping it around the pole. Soon after this wire was broken it began to sag between the first and second poles inside the inclosure. A day or two, or possibly longer, before the death was inflicted, it had sagged to within 10 or 12 feet of the ground. In sagging down it came in Contact with the power wires. On the 26th of November, in the afternoon, it was seen to sag within 4 or 5 feet of the ground.

Morton's work required him to be on the ground during the night. He was not a watchman, but what is termed "the handy man"—the general utility man. It was his duty to see that the machinery was kept in operation and that everything was in proper shape during the night. Among other things, it was his duty to fill the boilers with water. Eight or 10 feet from where the telephone sagged was a water pipe which came from the reservoir, at which pipe he could get water for the boilers. He went to work as usual on the 26th of November, at night. About 11 o'clock that night the Construction Company foreman discovered his body lying across the telephone wire with his feet on the ground. Sparks were coming from his leg and body and his clothing was on fire. He was burned in such a way as to indicate that he met instantaneous death by electrocution. Other details in connection with the incident are furnished by the evidence as throwing light upon the issue as to whether the defendants, or any of them, were guilty of such negligence as to authorize a recovery. Such of these as are pertinent will be noticed in considering the proposition urged for a reversal.

The petition alleges a cause of action against each of the defendants, in that they were each and all negligent in permitting the wire mentioned to sag and become charged with electricity in such manner as to become dangerous and cause death. There was no claim of contributory negligence on the part of either of the defendants, each of whom answered by a general denial.

I. The jurisdiction of this court is challenged by the respondents-defendants. They move to have case No. 21431 ordered back to the St. Louis Court of Appeals, or the appeal dismissed here, and case No. 20143 stricken from the docket.

Whatever be the modifications by recent adjudications of the ancient doctrine regarding the entirety of a judgment, the rule still obtains that there can be rendered in an action only one final judgment, which must finally dispose of the case as to all parties. This is statutory, R. S. 1909, § 2097; Wollman v. Loewen, 108 Mo. App. 580, 84 S. W. 166; Clark v. Railroad, 234 Mo. loc. cit. 435, 137 S. W. 583; McQuitty v. Steckdaub, 190 S. W. 590; Dixon v. Transit Co., 197 Mo. App. 646, 198 S. W. 431. Therefore the same case cannot be pending on appeal in two appellate courts through the appeals of different parties to the action. Sandusky, Ex'r, v. Sandusky, 265 Mo. loc. cit. 232, ...

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