Solomon v. Moberly Light And Power Company

• Decision Date: 13 May 1924
• Docket Number: 23968
• Citation: 262 S.W. 367,303 Mo. 622
• Parties: VELNA M. SOLOMON v. MOBERLY LIGHT AND POWER COMPANY, Appellant
• Court: Missouri Supreme Court

262 S.W. 367

303 Mo. 622

VELNA M. SOLOMON v. MOBERLY LIGHT AND POWER COMPANY, Appellant

No. 23968

Supreme Court of Missouri

May 13, 1924

Appeal from Randolph Circuit Court; Hon. Allen W. Walker Judge.

Affirmed.

Willard P. Cave and Hunter & Chamier for appellant.

(1) It was error for the court to permit plaintiff to amend one month after the verdict had been returned and judgment entered, the third count of her petition (the one she elected to stand on), by adding thereto the assignment of negligence contained in her first count (the count she had abandoned by her election).Chaput v. Bock,224 Mo. 73;Carr v. Moss,87 Mo. 447;Singer Manufacturing Co. v Givens,35 Mo.App. 602;21 R. C. L.p. 577;Habel v Ry. Co.,140 Mo. 159, 165;31 Cyc. 404;Renfro v. Prior,22 Mo.App. 403;Garton v. Canada,39 Mo. 357;Clark v. Spencer,14 Kan. 398.(2) Deceased was a mere trespasser, licensee or volunteer, and defendant was under no legal obligation other than to do him no willful or wanton harm.This doctrine applies to relieve defendant where the trespass or license is with respect to property of a third person and not to that of defendant.9 R. C. L. p. 1207;Minneapolis Gen. Elec. Co. v. Cronan,166 F. 651, 20 L. R. A. (N. S.) 816;Henderson v. Ashby,179 Ky. 507;Cumberland Tel. Co. v. Martin,116 Ky. 554, 63 L. R. A. 469;Greenville v. Pitts,102 Tex. 1, 14 L. R. A. (N. S.) 979;Graves v. Washington W. Power Co.,44 Wash. 675, 11 L. R. A. (N. S.) 452;Hickok v. Auburn Light, etc., Co.,200 N.Y. 464;State to use of Stansfield v. Tel. Co.,123 Md. 120, 52 L. R. A. (N. S.) 1170;Lapouyade v. Ry. & Light Co.,138 F. 237, 52 L. R. A. (N. S.) 1172;Benson v. Traction Co.,77 Md. 535, 20 L. R. A. 714;Plummer v. Dill,156 Mass. 426;Purtell v. Phil. & R. Co.,256 Ill. 110, 43 L. R. A. (N. S.) 193.(3)Plaintiff cannot recover because deceased was guilty of contributory negligence, and because he voluntarily assumed a position of danger, the hazards of which he understood and appreciated, and he died from a risk incident to such position.9 R. C. L.p. 1202;Carroll v. Grand Ronde Electric Co., 6 L. R. A. (N. S.) 290;Frauenthal v. Laclede Gaslight Co.,67 Mo.App. 1;Wood v. Diamond Electric Co.,185 Pa. 529;Anderson v. LightCo., 64 N. J. 665.(4) If deceased was killed by 110 volts and by reason of the defective electric equipment in the garage, plaintiff cannot recover, because the electric equipment in the Ricker garage were installed, owned and controlled by Ricker and not defendant.9 R. C. L.p. 1204, sec. 15;Minneapolis G. E. Co. v. Cronan,166 F. 651, 20 L. R. A. (N. S.) 816;Hoffman v. L. L. Co.,91 Kan. 540, 50 L. R. A. (N. S.) 574.(5) It is not permissible to undertake the establishment of a fact by several presumptions; an inference cannot be based on an inference, nor a presumption on a presumption to support a verdict; and since this case was thus established, the verdict cannot stand.State ex rel. Mo. Pub. U. Co. v. Cox,250 Mo. 551;Hays v. Hogan,273 Mo. 1, 25;State v. Lackland,136 Mo. 26;Glick v. Kansas City,57 Mo.App. 97;Haynie v. Packing Co.,126 Mo.App. 88;Wright v. United Com. Travelers,188 Mo.App. 457;Cahill v. Railroad,205 Mo. 393, 404;Hamilton v. Railroad,250 Mo. 715, 722;Swearingen v. Railroad,221 Mo. 644, 659;Yarnell v. Railroad,113 Mo. 570, 579;Hamilton v. Southern Railroad Co.,250 Mo. 714;United States v. Ross,92 U.S. 714;Whitesides v. Railroad Co.,186 Mo.App. 608;Manning v. Ins. Co., 100 U.S. 697.

Redick O'Bryan and John T. Barker for respondent.

(1) There was no error in allowing plaintiff to amend her petition to conform to the proof which had gone in without objection.Secs. 1274, 1277, R. S. 1919;Lamb v. Railroad,33 Mo.App. 492;Acton v. Dooley,16 Mo.App. 446;Insurance Co. v. Smith,117 Mo. 297;Sikes v. Turner,247 S.W. 806;Samples v. Railroad,232 S.W. 1051.(2) Sending unusually high voltage into the Ricker garage was the direct and proximate cause of the death of Harry Solomon, and it is immaterial that the drop cord and socket was not the kind that should have been used, if such was the case.Vessels v. Light Co.,219 S.W. 87;Campbell v. Railroad,243 Mo. 151.(3) Deceased was in the garage with the knowledge and consent of the owner, and not in any sense a trespasser as to the defendant.Defendant knew that the wire in this garage was being used every day by some one.Johnson v. Light Co.,232 S.W. 1098.(4) The negligence in this case consisted in permitting the destructive force to escape from defendant's high voltage wires, although it found its victim on other premises.(5) Evidence that wires were so slack that they might, or could, come together is sufficient, without actual showing that they did come together, when death occurs.(6) It is not necessary that defendant should have anticipated that the very injury in question would occur, but it is sufficient that the circumstances are such that some injury would be likely to result from its negligence in sending such heavy voltage in the Ricker garage, and that the death of Solomon did result therefrom, and that it appears to be a natural and proper consequence thereof.

OPINION

Railey, C.

On August 31, 1921, plaintiff filed in the Circuit Court of Randolph County, Missouri, her petition against the Moberly Light & Power Company to recover damages in the sum of $ 10,000 on account of the electrocution and death of her husband, Harry Solomon, through the alleged negligence of said defendant company.The case was tried in the above county before a jury and, on February 21, 1922, a verdict was returned in favor of plaintiff for the sum of ten thousand dollars and judgment was entered accordingly.Motions for a new trial and in arrest of judgment were filed and overruled, and the cause duly appealed by it to this court.

Plaintiff's petition contained three counts, but, at the conclusion of all the evidence, she was required by the court, at the instance of defendant, to elect on which count she would proceed to trial.She accordingly elected to stand on the third count, which charges, in substance, that on and prior to August 8, 1921, defendant was manufacturing and furnishing electricity for light and power to its customers at Moberly, Missouri; that it owns and operates in said city a system of wires strung on poles in the streets of said city by which means electric current is carried over, upon and through said streets from defendant's plant to its various customers, as aforesaid; and maintains certain wires on poles, which wires run along and over, among others, Fulton Avenue and North Ault Street in said city; and on and to the garage of Oliver Ricker, at the residence of Mrs. Maude Moore, at 651 North Ault Street in said city; that she was married to said Harry Solomon, on November 15, 1908, and continued to live with him as his wife, until August 8, 1921, when he was killed as hereafter stated; that she is now his widow and as such brings this suit; that on said 8th day of August, 1921, plaintiff's said husband was lawfully on the premises described as aforesaid, and used by said Ricker as a garage; that while in the latter, and in the exercise of due care, he came in contact with the said wires of defendant; that while holding an electric light attached to a long cord, he was shocked, burned and killed as follows, to-wit:

That on said date, and for a long time prior thereto, defendant maintained and operated two sets of electric wires, one with a heavy voltage and one with a less voltage; that the two wires carrying the different voltage were maintained on the same poles, and in passing over Ault Street said wires were maintained through certain trees along the side of said street; that by reason of said wires running through said trees, the limbs thereof came in contact with said wires, and the insulation on the latter became worn and defective, so that the wire containing the heavy voltage, on account of such defective insulation, came in contact with the wire containing the less voltage, which had also lost its insulation as aforesaid and, as a consequence, the wire containing the heavy voltage, in crossing the wire with the less voltage, or the limbs coming in contact with said wires, communicated such heavy voltage to the other wire; that on said August 8, 1921, the said Mrs. Maude Moore was a customer of the defendant, and the latter furnished electric lights for the said Ricker's garage; that defendant's wires entered said garage and it had caused to be used a long extension cord with an electric light bulb at the end of same, so that it could be moved back and forth throughout said garage as desired; that plaintiff's husband had frequently been in said garage, and knew the use that was made of said extension cord and electric light bulb; that plaintiff's husband knew said electric light, while so used in said garage, carried a small voltage, and was not dangerous to use; that he did not know said wire had become crossed with one of defendant's other wires carrying a heavy voltage; that on the above occasion plaintiff's husband went into said garage at about 9:30 o'clock in the evening and, seeing said extension cord with the light attached thereto lying upon the floor, and without knowledge on his part that the same was dangerous as aforesaid, picked it up for the purpose of using same, and a heavy voltage of electricity, which was coming through said cord, without the knowledge of plaintiff's husband, suddenly shocked, burned and killed him; that plaintiff's husband came to his death on account of the negligence and carelessness of the defendant as heretofore set forth, etc.

Defendant's first amended answer admits that it is a corporation, and denies every other allegation in pla...