Owens v. Union Elec. Co.
| Decision Date | 18 May 1987 |
| Docket Number | No. 14342,14342 |
| Citation | 729 S.W.2d 248 |
| Parties | Lawrence Owens and Iva Jane OWENS, Plaintiffs-Appellants, v. UNION ELECTRIC COMPANY, Lester Greer and J.M. Rutledge, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Hal E. Hunter, Hunter & Hunter, New Madrid, for plaintiffs-appellants.
David E. Blanton, Blanton, Rice, Sidwell & Ottinger, Sikeston, for defendants-respondents.
Plaintiffs Lawrence and Iva Jane Owens brought this action against the defendants on the theory that the combined and concurring negligence of defendants Greer (acting as agent and servant of J.M. Rutledge) and The Union Electric Company caused a "power surge" through the power lines which served plaintiffs' residence, as a result of which plaintiffs' residence was consumed by fire. The trial court directed a verdict for the defendants at the close of the plaintiffs' evidence. Plaintiffs thereafter appealed, but dismissed their appeal as to defendant Union Electric. The broad question before the court is whether the trial court properly directed a verdict in favor of defendants Greer and Rutledge on the ground that Greer's conduct, if negligent, was not a proximate cause of the fire. We conclude there was no error and affirm the judgment.
The merits of the appeal do not require an extensive or technical recitation of the background facts. Between 5 and 6 p.m. on April 27, 1983, defendant Greer was driving a tractor north on Route E in New Madrid County. Greer was pulling an implement referred to as an "eight-row disk." As he was driving past the Owens residence, Greer struck and cracked a utility pole across the road from that structure. Gary Brown, who was in the neighborhood at the time, testified he saw Greer's tractor strike the pole, but did not see what damage was done. Plaintiff Iva Jane Owens heard the collision between the tractor and the pole, but did not actually see it.
Greer informed Mrs. Owens that he had struck the pole; Mrs. Owens called Union Electric. Mr. L.V. Stevens, a supervisor for Union Electric, found the pole to be partially broken, leaning toward the plaintiffs' residence. What is referred to as the "primary" line (a 7,200 volt line) had come loose from its insulator, but was being held to the pole by a tie wire. Mr. Stevens "decided [it] would hold [until] the next day...." Harry Turner, a Union Electric lineman, disconnected the current in order to attach the primary line to the insulator. The line was then energized; Turner drove by the Owens residence and observed that the outside light and the lights in the house were working.
About 9 a.m. on Thursday, April 28, two linemen employed by Union Electric undertook to replace the damaged pole. As they were preparing to "frame" 1 the replacement pole, the damaged pole cracked and fell over a boom truck. The damaged pole never hit the ground nor did the primary, high-voltage line, strike anything. Some secondary lines did fall across the road, causing some damage to a utility truck and to a passing motorist's vehicle. When the secondary lines hit the vehicles and touched the ground, a secondary fuse blew, "de-energizing" the secondary lines. Power to the primary line was disconnected. The new pole was then set and "framed." Power was then restored.
Plaintiffs had evidence that their electrical appliances operated erratically after the utility pole was damaged. Plaintiff Iva Jane Owens testified that her lights and her television set were working well until power was restored on Wednesday evening. However, Mrs. Owens testified that on Wednesday evening, about 10:30 p.m., her television set began "fading in and out" and she noticed the smell of burning rubber. Mr. Owens testified that when he arrived home from work about 12:30 a.m. on Thursday, he also could smell rubber burning but could not find the source of the smell. Owens also noticed that the kitchen light would "get real bright and real dim."
This erratic behavior of the appliances continued Thursday and into Friday. Mrs. Owens' mother, who lived in a trailer near the Owens residence and whose electric service came from the same source as that furnished to the Owens residence, experienced the same difficulties with her appliances as did Mr. and Mrs. Owens. There was also evidence that a 220-volt wall receptacle into which Mrs. Ervin's clothes dryer was plugged was "crystallized" or fused during this period. The Owens residence was destroyed by fire on Friday afternoon, April 29.
We have recited the operative facts in rather cursory fashion because it is clear to us plaintiffs never established that any act or omission on the part of defendant Greer could be considered a "proximate cause" of the plaintiffs' damage. As we have said, it is apparent from the record that plaintiffs' theory of the case was that the fire which destroyed their residence was caused by a "power surge" or "spike" which resulted from the falling of the secondary power lines while the utility pole was being replaced on Thursday, April 28. To establish that the fire which destroyed their residence was a result of negligence in erecting the new utility pole, plaintiffs called an expert witness to whom several hypothetical questions were propounded.
On this appeal, the several points briefed by the appellants deal with the trial court's sustention of objections to the hypothetical questions put to the expert witness. These points may have some merit, but they are so indifferently briefed that we would be obliged to become advocates for the plaintiffs to rule confidently on the assignments of error made. We have examined the plaintiffs' assignments of error dealing with the propriety of the hypothetical questions put to their expert, Mr. Graves, and conclude that even if there was error in sustaining objections to some of the questions put to him, the error was not prejudicial. Error without prejudice is no ground for reversal. Rule 84.13(b); Neavill v. Klemp, 427 S.W.2d 446, 448 (Mo.1968); Pratt v. Cudworth, 637 S.W.2d 720, 724 (Mo.App.1982).
At the close of plaintiffs' evidence, defendants Greer and Rutledge filed a written motion for a directed verdict upon the ground, among others, that...
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