Russell v. Union Elec. Co. of Mo.

• Citation: 191 S.W.2d 278,238 Mo.App. 1074
• Parties: Ralph V. Russell and Edna Russell, Respondents, v. Union Electric Company of Missouri, a Corporation, Appellant
• Decision Date: 18 December 1945
• Court: Court of Appeal of Missouri (US)

191 S.W.2d 278

238 Mo.App. 1074

Ralph V. Russell and Edna Russell, Respondents, v. Union Electric Company of Missouri, a Corporation, Appellant

Court of Appeals of Missouri, St. Louis District

December 18, 1945

Appeal from the Circuit Court of the City of St. Louis; Hon. William S. Connor, Judge.

Affirmed.

Robert J. Keefe, Clyde H. Snider, Roberts P. Elam and Igoe Carroll, Keefe & Coburn for appellant.

John A. Woodbridge of counsel.

(1) The trial court erred in refusing to give defendant's requested peremptory instruction because: (a) The evidence fails to make a submissible case under the doctrine of respondeat superior for any negligence in the installation of the range cable in plaintiffs' residence and conclusively establishes that such cable was not installed by this defendant, but by an independent contractor, the County Electric & Gas Appliance Company through its servant Hoefer, for whose negligence this defendant is not liable. Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726; Barnes v. Real Silk Hosiery Mills, 341 Mo. 563, 108 S.W.2d 59; Riggs v. Higgins, 341 Mo. 1, 106 S.W.2d 1; Coul v. George B. Peck D. G. Co., 326 Mo. 870, 32 S.W.2d 758. (b) The status of the County Electric & Gas Appliance Company as an independent contractor to do the wiring of plaintiffs' residence would not be altered, even if it were employed to do such wiring by this defendant and in excess of an authority given to defendant by plaintiffs. Furthermore, the employment of that company to do the wiring was, as a matter of law, consented to, acquiesced in, and ratified by the plaintiffs. 3 C. J. S., pp. 157-158, sec. 237, p. 266, sec. 319; Peck v. Ritchey, 66 Mo. 114; Ireland v. Shukart (Mo. App.), 177 S.W.2d 10; Madison v. Williams (Mo. App.), 16 S.W.2d 626; Cut-Rate Woolen Co. v. United States Tailoring Co. (Mo. App.), 267 S.W. 969; Plummer v. Knight, 137 S.W. 1019; Eau Claire Canning Co. v. Western Brokerage Co., 213 Ill. 561, 73 N.E. 430; Leviten v. Bickley, 2d Cir., 35 F.2d 825. (2) The trial court committed reversible error in giving Instruction No. 1 because: (a) It submitted issues which were outside of, and not supported by, the evidence. Authorities cited under Point 1 supra; Silliman v. Munger Laundry Co., 329 Mo. 235, 44 S.W.2d 159; Gundelach v. Compagnie Generale Translantique (Mo.), 41 S.W.2d 1; Huger v. Doerr (Mo. App.), 170 S.W.2d 689; Siemens v. St. Louis Electric Terminal R. Co., 348 Mo. 682, 155 S.W.2d 130. (b) It submitted issues which were outside, and beyond the scope of, the pleadings. Authorities cited under Point (2), supra; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; Bach v. Diekroeger (Mo. App.), 184 S.W.2d 755.

Henry C. Stoll for respondents.

Orville Richardson of counsel.

(I) Defendant's demurrer to the evidence was properly overruled. (a) There was at least a question of fact for the jury whether Hoefer was an independent contractor or whether defendant had a right to control the manner in which the range wiring installation was done. (1) Agency may be shown by circumstantial evidence. State ex rel. Baumann v. Doder (Mo. App.), 121 S.W.2d 263, 265. (2) A corporation may act as an agent. National Plumbing Supply Co. v. Torretti (Mo. App.), 175 S.W.2d 947, 951. (3) Each case must be determined on its own facts. Semper v. American Press, 217 Mo.App. 55, 273 S.W. 186, 189; Harvey v. O'Connor (Mo. App.), 284 S.W. 171, 173. (4) Plaintiffs must be given the benefit of the most favorable view of the evidence rule. Schneider v. Dubinsky Realty Co., 344 Mo. 654, 127 S.W.2d 691, 694; Hopkins v. Kurn, 351 Mo. 41, 171 S.W.2d 625, 632; Klaber v. Fidelity Bldg. Co. (Mo. App.), 19 S.W.2d 758, 762; Andres v. Cox, 223 Mo.App. 1139, 23 S.W.2d 1066, 1069; Mattocks v. Emerson Drug Co. (Mo. App.), 33 S.W.2d 142, 144. (5) The principal test is the right of control over the mode of doing the work. Aubuchon v. Security Const. Co. (Mo. App.), 291 S.W. 187, 191; Riggs v. Higgins (banc), 341 Mo. 1, 106 S.W.2d 1, 3; Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761, 766. (b) The defense of independent contractor is not available where injury has arisen in the doing of work inherently dangerous or which will in the natural course of events produce injury unless certain precautions are taken. Mallory v. Louisiana Pure Ice & Supply Co. (banc), 320 Mo. 95, 6 S.W.2d 617, 624; Bloecher v. Duerbeck, 333 Mo. 359, 62 S.W.2d 553, 555, s. c., 338 Mo. 535, 92 S.W.2d 681; Vitale v. Duerbeck, 332 Mo. 1184, 62 S.W.2d 559, s. c., 338 Mo. 556, 92 S.W.2d 69; 39 C. J. 1331, 1333; 27 Am. Jur. 515-518; 23 A. L. R. 1016, 1084; 76 A. L. R. 1257. (c) Defendant not only had the duty of installing and inspecting the range wires, but actually undertook to do so by Hoefer and its inspector. (1) Defendant was negligent in delivering current into wires its inspector had gone over and knew or should have known were defective. Kuhlman v. Water, Light & Transit Co., 307 Mo. 607, 271 S.W. 788, 796; Smith v. Southwest Mo. R. Co., 333 Mo. 314, 62 S.W.2d 761, 763; Pulsifer v. City of Albany, 226 Mo.App. 529, 47 S.W.2d 233, 241; 29 C. J. S. 611; 18 Am. Jur. 498; 134 A. L. R. 519. (2) In absence of an express agreement it was defendant's duty to install and inspect the wires. Massey-Harris Co. v. Quick, 227 Mo.App. 736, 42 S.W.2d 47, 50; Inman Mfg. Co. v. American Cereal Co., 124 Iowa 737, 100 N.W. 860, 861. (3) Neither of the plaintiffs signed the top portion of Defendant's Exhibit 4. Defendant had no authority to fill a blank in this form in an unauthorized manner. David Plant Securities Co. v. Cooper, 258 S.W. 455, 458; Brinker v. Miller, 162 S.W.2d 295, 299-301; Carson v. Woods (Mo.), 177 S.W. 623, 626; McClure v. H. R. Ennis Real Estate & Investment Co., 219 Mo.App. 112, 268 S.W. 675, 678; 3 C. J. S. 979. (4) Even if Exhibit 4 was a "contract" and defendant was an agent of plaintiffs to employ Wright, there was no ratification of defendant's unauthorized substitution of the Appliance Company for Wright. (5) Defendant would be liable for the negligence of its agents or contractors even if it voluntarily undertook to do the work. Rick Furniture Co. v. Smith (Tex. Civ. App.), 202 S.W. 99, 100; Bloecher v. Duerbeck, 333 Mo. 359, 62 S.W.2d 553, 555; 45 C. J. 646; 38 Am. Jur. 659; Restatement of Law of Torts, section 325, pp. 881-882. (II) The court did not err in giving plaintiffs' instruction No. 1. (a) This instruction did not submit any fact issue without support in evidence. If the fact that plaintiffs purchased a range "to be installed by the defendant" was immaterial, which it was not, it was submitted in the conjunctive with all necessary material facts and no possible prejudice could result. Martin v. John Clay & Co. (Mo. App.), 167 S.W.2d 407, 411; Shook v. Retail Hardware Mut. Fire Ins. Co., 154 Mo.App. 394, 134 S.W. 589, 594; People's Bank v. Stewart, 160 Mo.App. 643, 142 S.W. 789, 790; Becker v. Thompson, 336 Mo. 27, 76 S.W.2d 357, 362; Givens v. Spalding Cloak Co., 228 Mo. 169, 63 S.W.2d 819, 828; 5 C. J. S. 1132, sec. 1764 (c); 4 C. J. 1037, sec. 3017. (b) This instruction did not submit issues beyond the scope of the pleadings. Instructions submitting ultimate facts need not submit unnecessarily pleaded evidentiary particulars. Mitchell v. Wabash Ry. Co., 334 Mo. 926, 69 S.W.2d 286, 290; Took v. Wells, 331 Mo. 249, 53 S.W.2d 389, 392; Bradley v. Becker, 296 Mo. 548, 246 S.W. 561, 564; Wessel v. Lavender, 262 Mo. 421, 171 S.W. 331, 333-334.

McCullen, J. Anderson, J., concurs; Hughes, P. J., not sitting.

OPINION

McCULLEN

This suit was instituted in the Circuit Court of the City of St. Louis by respondents, as plaintiffs, against appellant, as defendant, to recover damages for the destruction by fire of plaintiffs' dwelling and the contents thereof alleged to have been caused by defendant's negligence. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiffs and against defendant in the sum of $ 7500. After an unavailing motion for a new trial, defendant duly appealed.

The petition of plaintiffs alleged that defendant is a Missouri corporation engaged in the business of distributing electric current as a public utility; that plaintiffs were the owners of an eight room two-story frame dwelling house located on Route #1 in Glencoe, St. Louis County, Missouri, together with furniture and numerous personal belongings of plaintiffs, all contained within said dwelling; that in May, 1941, plaintiffs purchased an electric range from defendant and that during said month defendant installed the same in the kitchen of plaintiffs' dwelling; that it was defendant's duty to install said range, together with the necessary wiring and electrical connections, in such a manner as to render the same reasonably safe for lawful use by plaintiffs; that defendant failed to install said range in a reasonably safe manner, but negligently installed the wiring for said range and caused the same to be and remain in a dangerous condition. The pertinent assignments of negligence are:

"That the defendant caused the said wiring and insulation thereof to be broken and exposing the wire, and that defendant negligently used uninsulated, sharp-edged staples, in securing the said wiring to the interior of plaintiffs' dwelling.

"That the defendant knew or in the exercise of ordinary care could have known that the aforesaid condition of the wire, insulation and staples, was likely to cause a 'short circuit' to develop and cause same to ignite plaintiffs' dwelling, but negligently and carelessly caused said condition to be and remain as aforesaid.

"that on or about the 3rd day of February, 1942, as a direct and proximate result of defendant's negligence as aforesaid a short circuit did develop in the said wire, and caused ...