Murphy v. Missouri Power & Light Co.
| Decision Date | 08 November 1948 |
| Docket Number | 21036 |
| Citation | 214 S.W.2d 742 |
| Parties | MURPHY v. MISSOURI POWER & LIGHT CO |
| Court | Kansas Court of Appeals |
Ira B McLaughlin, of Kansas City, and Pross T. Cross and Gerald Cross, both of Lathrop, for appellant.
Don E Black, of Jefferson City, R. H. Musser, of Plattsburg, and J D. James, of Jefferson City, for respondent.
This is an action for damages for personal injuries alleged to have been sustained by plaintiff as the proximate consequence of the negligence of defendant. To plaintiff's second amended petition, defendant filed motion to dismiss for the reasons: '(a) That the plaintiff fails to state a claim upon which relief can be granted; (b) that the plaintiff fails to state sufficient facts to state a cause of action against this defendant; and (c) that the defendant owed no duty to the plaintiff to warn her of the alleged condition so alleged and complained of by her on pages 6 and 7 of said petition.'
The court sustained the motion to dismiss and entered final judgment when plaintiff declined to plead further, from which plaintiff perfected her appeal.
Plaintiff's petition alleges that defendant is, among other things engaged in the business of selling and installing electrical equipment of the kind and nature hereinafter mentioned; that plaintiff was employed by the Guardian Savings & Loan Association which owned and operated a hotel in Excelsior Springs, Missouri; that defendant sold to the Guardian Savings & Loan Association an electrically operated exhaust fan and certain appliances to operate the same; that the fan was comprised of a large circular metal frame work approximately 27 inches in diameter, within which is a hub, provided with 4 propellers or blades that extend radially from said hub; that said blades, while said fan was in operation, revolved at a rapid rate of speed; that usually and ordinarily said blades would lie within the plane of rotation; that said fan was operated by means of an electric motor to which was affixed electric wires through which coursed currents of electricity when the fan was in operation; that the defendant not only sold and installed this equipment but furnished current for its operation. It is further alleged that defendant installed the fan and other electrical equipment in the upper portion of one of the windows of the hallway and lobby of said hotel; that defendant connected the electric wires from said electric motor to a metal double knife blade switch , which it furnished and installed near the lower right hand corner of the structure containing the fan, and within 6 inches of the ends of the blades; that the switch was connected by electric wires to a light socket, from which socket electric current could be and was obtained; that when the switch was closed and electric current was thereby permitted to pass through the wires and switch causing the fan to rotate; that when said switch was open the fan did not rotate; that all of the exposed parts of said switch, except the wooden handle thereof, were alive; that is, were not covered with insulated material; that immediately below the window and on the floor of the hallway or lobby, there was a metal hot water radiator which constituted a ground, so that when the body of any person touching the radiator and another portion of the body touched the live portion of the switch, at a time when it was closed and electric current was passing through the same, the current would pass through the body of such person and they would receive an electric shock; that it was the established custom of persons engaged in the business of installing electrical equipment, of the kind mentioned, to enclose knife blade switches that were so placed as to be accessible to and that were intended to be used by persons unfamiliar with the construction, operation and hazards involved in the use and operation of such devices, in a cabinet equipped with an external operating handle enabling said switch to be operated without the possibility of bodily contact by the operator thereof with the live metal portion of said switch; that it was a part of plaintiff's duty to open and close the switch when desired; that on the day in question plaintiff endeavored to stop the fan from rotating by opening the switch in the manner in which she had been instructed by the defendant; that at said time and place her right hand came in contact with the live part of said switch, the lower portion of her body came in contact with the hot water radiator, and she received a sudden, violent and unexpected electric shock, which caused a sudden involuntary movement and jerk of plaintiff's right hand away from said switch, and it came in contact with the rapidly revolving blades of the fan which caused her serious injuries. It is further alleged that her bodily injuries are the direct result of the negligent and unskillful method by which the defendant installed said fan and switch; that said negligence resulted in said fan and switch being installed in such a manner that the operation thereof was dangerous to this plaintiff and other unqualified persons.
The specific grounds of negligence alleged, when summarized, are: That it was possible, practical and the established custom among persons who were engaged in installing electrical equipment of the type and kind described, to guard the propellers of the fan and to provide a protection against the likelihood of the blades, when the fan was in motion, from striking and injuring persons engaged in the operation of the fan; that defendant installed the switch in such close proximity to the propellers of said fan as to render it dangerous for unqualified persons to attempt to open said switch when the fan was in operation, and negligently failed to enclose the switch and to cover it with a cabinet equipped with an external operating handle or other safety device so as to enable unqualified persons to open or close the switch without the likelihood or possibility of bodily contact with the live or uninsulated portion of said switch; that the manner of installation of the fan, the switch and electric wires connected therewith, left the appliances in an imminently and inherently dangerous condition, and that the defendant knew or, by the exercise of ordinary care, could have known of such dangerous condition, and that the switch would likely be operated by a person who was unfamiliar with the danger of coming in contact with the live portion of the switch, and failed and neglected to warn plaintiff of said dangerous and defective condition of the fan and appurtenances thereto.
In effect the motion to dismiss admits all properly pleaded facts. Defendant contends that it owed no duty, statutory or otherwise, to guard or shield the switch or the fan. This contention is based on the theory that it sold and installed the fan, switch and other appliances under a contract with plaintiff's employer, and that there was no privity of contract existing between plaintiff and defendant and, therefore, no liability of defendant to the plaintiff for the construction or installation of this equipment, even if negligently done. The petition is founded on negligence and not on the breach of a contract.
Defendant earnestly asserts that the rule in this state is that a contractor, manufacturer, vendor or furnisher of an article is not liable to third persons, who have no contractual relation with him, for negligence in the construction manufacture or sale of such an article because there is no privity of contract....
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