Shoemaker v. MOUNTAIN STATES TELEPHONE & TEL. CO.

• Decision Date: 09 January 1937
• Docket Number: No. 989.,989.
• Court: U.S. District Court — District of Idaho
• Parties: SHOEMAKER et al. v. MOUNTAIN STATES TELEPHONE & TELEGRAPH CO.

17 F. Supp. 591

SHOEMAKER et al. v. MOUNTAIN STATES TELEPHONE & TELEGRAPH CO.

No. 989.

District Court, D. Idaho, E. D.

January 9, 1937.

Anderson, Bowen & Anderson, of Pocatello, Idaho, for plaintiff.

Milton Smith, Jr., and E. R. Campbell, both of Denver, Colo., and Merrill & Merrill, of Pocatello, Idaho, for defendant.

CAVANAH, District Judge.

This is an action to recover damages for personal injuries to the plaintiff Dora Shoemaker alleged to have been caused by an electrical shock which suddenly struck her when using a telephone installed by defendant in the home of the plaintiffs.

In substance it is alleged in the amended complaint that the plaintiff Shoemaker entered into a contract with the defendant under the terms of which defendant installed in the home of plaintiffs a telephone, and that it was defendant's duty to inspect and maintain it in reasonably safe condition for the use of the plaintiffs and their family; that on July 23, 1936, in the home of the plaintiffs, the plaintiff Dora Shoemaker was called to the telephone and talked with a Mr. Lot, over it, in the usual and ordinary manner, and when in doing so she took hold of a small stand about one foot in height with one hand, attached to the top of the stand was the transmitter of the telephone, and she then took hold of the receiver of the telephone with the other hand, at which time, by reason of the negligence of the defendant in the operation of the telephone system she was suddenly struck by electricity and instantly and violently knocked down, which resulted in her receiving certain injuries.

The defendant challenges the sufficiency of the facts so alleged as to constitute liability on its part by demurrer and motion to make more definite. The demurrer is both general and special. The special grounds are for uncertainty and ambiguity in: (a) That it is not alleged whether the contract of installing the telephone was oral or in writing nor the terms thereof, and if in writing, demand is made that it be set out hec verba; (b) it is not alleged wherein there was any failure on the part of the defendant to maintain the telephone in a reasonably safe condition; (c) no facts are alleged showing negligence of the defendant in the operation of the telephone system; (d) no facts are alleged upon which a conclusion of negligence can be predicated; and (e) it cannot be determined from the amended complaint what acts or omissions of the defendant would be urged as constituting negligence causing the injuries to the plaintiff Dora Shoemaker.

The motion to make more definite requests that the plaintiff be required to set out with more particularity the following: (a) The character and nature of the contract alleged and the nature of defendant's violation thereof; (b) the source of the electricity which struck the plaintiff Dora Shoemaker; (c) the character and nature of the particular acts or omissions which plaintiff will contend constitute negligence of the defendant; and (d) the amount of money which plaintiffs allege they paid for medicine, hospital treatment, services of physician etc.

The theory of the plaintiffs is that the amended complaint comes within the rule of res ipsa loquitur, charging negligence in general terms, and when it is made to appear that the telephone system was under the management of the defendant and that the accident was such that in the ordinary course of things does not happen if those who have such management use proper care, the fact the accident happened affords reasonable evidence in the absence of explanation by the party charged that it arose from the want of proper care. It appears that the telephone system was under the charge of the defendant, who installed it; that it was its duty to keep it up; and that an injury occurred while plaintiff Dora Shoemaker was using the telephone in the ordinary way. These facts bring the case under the rule advanced by the plaintiffs, and under that rule it is not incumbent upon plaintiffs to set out specifically the negligent acts or omissions complained of. The clear statement of the maxim "res ipsa loquitur" which is adopted by the courts generally is that the doctrine of res ipsa loquitur is that: "When a thing which has caused an injury is shown to be under the management of the party charged with negligence, and the accident is such as in the ordinary course of things will not happen if those who have such management use proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the parties charged, that it arose from the want of proper care." Feldman v. Chicago Railways Co., 289 Ill. 25, 124 N.E. 334, 338, 6 A.L.R. 1291. The maxim "res ipsa loquitur" is stated to mean, by Mr. Justice Holmes, in Graham v. Badger, 164 Mass. 42-47, 41 N.E. 61: "`Res ipsa loquitur,' which is merely a short...