Snyder v. Wagner Electric Manufacturing Company

• Decision Date: 19 July 1920
• Citation: 223 S.W. 911,284 Mo. 285
• Parties: MARTHA A. SNYDER v. WAGNER ELECTRIC MANUFACTURING COMPANY, Appellant
• Court: Missouri Supreme Court

223 S.W. 911

284 Mo. 285

MARTHA A. SNYDER v. WAGNER ELECTRIC MANUFACTURING COMPANY, Appellant

Supreme Court of Missouri, First Division

July 19, 1920

Appeal from St. Louis City Circuit Court. -- Hon Karl Kimmel, Judge.

Affirmed.

Holland Rutledge & Lashly for appellant.

(1) The court erred in refusing to give the peremptory instruction offered by appellant at the close of all the evidence because respondent failed to prove facts sufficient to constitute a cause of action. The pleader was limited to two specifications of negligence, an alleged defective socket and an alleged defective drill. The petition contained an averment that a current of 110 volts was maintained on the circuit, but no averment that such current was dangerous, much less any averment that appellant knew, or, by the exercise of ordinary care, would have known of such danger. The master is not an insurer of his servant's safety. To recover it was incumbent upon respondent to prove: (a) That respondent maintained a dangerous current of electricity on the appliances in question. (b) That such danger was known to appellant, or, by the exercise of ordinary care, would have been known to appellant. (c) That the socket or drill were in such defective condition as to allow a dangerous current of electricity to escape to the person of deceased. (d) That deceased received a dangerous current of electricity that resulted in his death. None of the foregoing matters were proven by respondent. Orcutt v. Century Bldg. Co., 201 Mo. 443; Waldhier v. Railroad, 71 Mo. 514; Price v. Railroad, 72 Mo. 414; Ely v. Railroad, 77 Mo. 34; Bartley v. Railroad, 148 Mo. 124; Feary v. Railroad, 162 Mo. 75; McGrath v. Railroad, 197 Mo. 105; Graney v. Railroad, 157 Mo. 666; Fuchs v. St. Louis, 167 Mo. 620. (2) The court erred in not discharging the jury, and continuing the case upon motion of appellant, on account of the statement made by counsel for respondent in his opening statement to the jury, by which counsel conveyed the idea to the jury that the case was being defended by some company other than the defendant itself. The controversy in this case was wholly and solely between respondent and appellant. The purpose of this question was to convey to the jury the idea that some insurance company was interested in the outcome of the litigation. This constitutes error. Burrows v. Likes, 180 Mo.App. 447; Gore v. Brockman, 138 Mo.App. 231; Trent v. Printing Co., 141 Mo.App. 437. (3) The court erred in giving instruction number 1 at the instance of respondent. (a) It is error for a plaintiff to go to the jury in a case of this kind without an instruction stating to the jury under what circumstances the plaintiff is entitled to recover. (b) The instruction is erroneous because it contains an hypothesis of the jury finding for respondent under "other instructions given." There were no other instructions given under which the jury were authorized to find for respondent. Johnson v. Railroad, 117 Mo.App. 308; Allen v. Transit Co., 183 Mo. 432. (4) The court erred in allowing respondent's counsel to argue the case when respondent had asked no instruction with reference to the law governing the case. Powell v. Railroad, 255 Mo. 420.

Leonard & Sibley and Shepard Barclay for respondent.

(1) The statement for appellant omits to state what facts in the record raise the points and questions argued. It does not mention any rulings whatsoever, or the facts on which they arose, nor quote or refer to any instructions (given or refused) for either party, or any motion for new trial or in arrest. It is neither a "clear and concise statement of the case" (as required by statute) nor a "fair and concise statement of the facts," as required by the Rule 15 of this court. It should be adjudged insufficient to raise any question for review, and the judgment be affirmed or the appeal dismissed, if such requirements have any meaning worth enforcing. R. S. 1909, sec. 2080; Long v. Long, 96 Mo. 180; Jayne v. Wine, 98 Mo. 404; Clements v. Turner, 162 Mo. 466; Bank v. Kropp, 266 Mo. 218. (2) The motion in arrest was not well taken. The petition states a cause of action. The facts as to defective condition of the socket, and of the motor-drill are alleged as being "with knowledge" of defendant and that Snyder received "a shock or shocks of electricity of such intensity that he died" and the other details of defendant's negligence, are fully given, and show liability. Myers v. City, 189 S.W. 816. (3) For the same reasons and under the evidence, the peremptory instruction was properly denied; operators of electrical power have an affirmative duty to use reasonable care not to allow escape of enough current (whatever the voltage) to kill employees engaged in work in their plants, and using due care in so doing. Curtis, Electricity (1915), sec. 597, p. 910; Von Treba v. Gas Co., 209 Mo. 648; Geismann v. Elec. Co., 177 Mo. 654. Insulation is an affirmative positive duty. Curtis, Electricity (1915), sec. 594, p. 908. (5) Employers of establishments using electricity are bound to exercise reasonable care in control of currents, appliances and electrical apparatus to diminish the risk of injury to employees in their service; and when death from electric shock ensues to an employee, who is free of fault, it may be considered along with other circumstances. Curtis, Electricity (1915), sec. 597, p. 910; Myers v. City, 189 S.W. 810; Transit Co. v. Requenca, 224 U.S. 89; Delahunt v. Tel. Co., 215 Pa. 241; Ry. v. Newton, 118 Va. 222; Hicks v. Tel. Co., 157 N.C. 519; Kampman v. Mendoza, 141 S.W. 161. (6) There was no error in overruling defendant's motion to discharge the jury, during plaintiff's opening statement. The statement of counsel did not mention insurance. Even if it did, the trial court is to decide whether it had any prejudicial effect. Only where the trial court, or court having authority to review the facts, "is satisfied that the verdict of the jury has been influenced thereby" should an express reference to such insurance be considered error. Cement Co. v. Hatt, 231 F. 618; Egner v. Curtis Co., 96 Neb. 18, L. R. A. 1915A, 157. And a reference in good faith to insurance (on the voir dire) is not error in this State. Meyer v. Mfg. Co., 67 Mo.App. 389; Yates v. Wrecking Co., 195 S.W. 549; Saller v. Shoe Co., 130 Mo.App. 712. If the remark in the opening statement was improper, defendant should have asked a ruling or instruction to disregard it; which was not done, but would have been the proper remedy. Mcginnis v. Loring, 126 Mo. 404; O'Mellia v. Railroad, 115 Mo. 205. (7) No facts tending to account for the death of Snyder other than by electric shock were offered by defendant, or to rebut the prima-facie case made by the plaintiff, so that the judgment should be affirmed. Williams v. Elec. Co., 274 Mo. 1; Von Treba v. Laclede Co., 209 Mo. 648; Williams v. City, 177 Mo.App. 177. That result should follow even if there were errors of procedure in the record, as the latter would then be immaterial, and not prejudicial to the substantial rights of defendant upon the merits. R. S. 1909, secs. 1850, 2082; Williams v. Elec. Co., 274 Mo. 1; Railway v. Moore, 228 U.S. 433; Shinn v. Railroad, 248 Mo. 173; Walsh v. Exposition Co., 101 Mo. 534; King v. King, 155 Mo. 406; Woody v. Railway, 104 Mo.App. 678; Lancaster v. Collins, 115 U.S. 227.

BROWN, C. Ragland and Small, CC., concur. Woodson, J., absent.

OPINION

BROWN, C. --

This is an action instituted by respondent to recover damages for the death of her husband Louis Snyder on February 10, 1917, in defendant's factory in St. Louis County, while in its service and engaged in his work in connection therewith. The cause was tried upon a second amended petition and defendant's general denial thereto, at the April term of the Circuit Court for the City of St. Louis and resulted in a verdict and judgment for the plaintiff in the sum of $ 8000. No objection was made to the petition by demurrer or motion, or otherwise than by objection to the introduction of any evidence. The trial proceeded upon the merits to the end, but at the close of the plaintiff's testimony in chief the defendant requested an instruction which it names in its abstract as "demurrer to plaintiff's evidence" and which is as follows: "The court instructs the jury that under the law and the evidence in this case your verdict must be for the defendant," which was refused by the court, and defendant thereupon introduced a great quantity of evidence to sustain the issue on its own behalf. After verdict it duly filed its motion for a new trial, which was overruled, and its motion in arrest, which was also overruled. The motion in arrest assigns as a ground therefor: "That the petition does not state facts sufficient to constitute a cause of action against the defendant." While the appellant does not, in his statement, favor us with any reference to the contents of these motions, we will take for granted that the motion for a new trial is sufficient to raise the points relied on in its argument.

The second amended petition, against which the appellant's attack is largely directed, states, in substance, that the defendant corporation owned and operated a plant in St. Louis for the manufacture of electric appliances; that the deceased, who was not an electrician, had long been employed by it in other departments, but was on or shortly before the date of the accident transferred to the motor department where it occurred, and where the surroundings and appliances were new and unfamiliar to him, and was there directed to place certain appliances upon a large iron boring machine and to fasten same by screws to be inserted in holes, which he was directed to drill for that purpose with a drill operated by electricity and which he...