State ex rel. City of Macon v. Trimble

• Decision Date: 31 December 1928
• Docket Number: 29074
• Citation: 12 S.W.2d 727,321 Mo. 671
• Parties: The State ex rel. City of Macon v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

12 S.W.2d 727

321 Mo. 671

The State ex rel. City of Macon v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals

No. 29074

Supreme Court of Missouri

December 31, 1928

Record quashed.

George N. Davis and John N. Franklin for relator.

(1) The Court of Appeals in its opinion and finding failed to recognize the effect of the undisputed testimony in the case that the insulation on the drop cord in evidence with which respondent came in contact was worn off and rotten, and that the wire used in same was not of a kind to prevent injury to a person using the drop cord as plaintiff was using it. The Court of Appeals says "it is claimed that the drop cord was defective," but the fact as related by the Court of Appeals shows that this is a typical case of divided responsibility, where an unexplained accident may have been attributable to one of several causes, for some of which the defendant is not responsible. Under such a state of facts the accident itself furnishes no evidence as to which, the plaintiff or the defendant, was responsible for its occurrence. Peters v. Light Co., 108 Va. 333; 9 Am. Electrical Cases, 1117. (2) The court overlooked the controlling decision of the Supreme Court in the case of Kuhlman v. Water Co., 307 Mo. 607. Appellant submits that the Kuhlman case was on allfours with the present case for the reason that in the Kuhlman case, the court held that the testimony showed the injury to have been caused by defective wiring on plaintiff's premises, and this holding was on testimony practically identical with plaintiff's testimony in this case. The other cases referred to, to-wit: Morrow v. Mo. Gas Co., 286 S.W 106; Soloman v. Moberly L. & P. Co., 303 Mo. 622; Vessels v. Light & Power Co., 219 S.W. 80, all contain proof of contact as between primary and secondary wires, and the passage of 2300 volts of electricity into the secondary wires; thus making the case for the jury, which testimony is not only absent in this case, but is, on the contrary, directly controverted by all the testimony in the case. (3) The court, in its opinion, has overlooked and failed to follow the controlling decisions of the Supreme Court, namely: Kuhlman v. Water Co., 307 Mo. 607; Morrow v. Mo. Gas Co., 286 S.W. 106; Solomon v Moberly L. & P. Co., 303 Mo. 622; Vessels v. Light & Power Co., 219 S.W. 80; Pointer v. Mountain Ry. Const. Co., 269 Mo. 104. The court, in its opinion, holds that this is a case where the doctrine of res ipsa loquitur applies. In the Morrow case, 286 S.W. 106, and in the Kuhlman case, the court held that the same allegation of negligence contained in this petition was an allegation of specific rather than general negligence. (4) The court overlooked and failed to follow the controlling decisions of the Supreme Court, in Pointer v. Mountain Ry. Const. Co., 269 Mo. 104; State ex rel. Mo. Pub. Utilities Co. v. Cox, 298 Mo. 427; Oglesby v. Railroad, 177 Mo. 272, and Warren v. Railroad, 178 Mo. 125, in this -- there is in this case absolutely no evidence of any negligence, nor is there any proof from which the jury could find that the respondent was injured by any other than the ordinary current escaping through his own defective appliances, other than the mere fact that the respondent was injured. All the above cases hold that you cannot found one presumption upon another as a foundation for recovery of damages, which this case undoubtedly does.

Matthews & Jones and Lacy & Edwards for respondent.

(1) In a certiorari directed to a court of appeals based on an allegation that its rulings conflict with previous decisions of this court, it is conclusively presumed that respondents have in their opinion correctly stated the facts on which their ruling is based, so that those facts stated in the opinion will be accepted as true by this court. State ex rel. Car Co. v. Daues, 313 Mo. 681; State ex rel. v. Trimble, 274 S.W. 418; State ex rel. v. Allen, 294 Mo. 220. (2) The opinion of the Court of Appeals does not contravene any well established principle of law based on the facts set out in the opinion. (3) There is no conflict between the opinion of the Court of Appeals in the present case and the decision of the Supreme Court in the case of Morrow v. Gas Co., 315 Mo. 367. (4) The opinion of the Court of Appeals is not in conflict with nor does it contravene any of the decisions cited by relator, but on the contrary the opinion follows the rulings of this court in all of the following late and controlling decisions: Morrow v. Mo. Gas Co., 315 Mo. 367; Sullivan v. Moberly L. & P. Co., 303 Mo. 622; Vessels v. L. & P. Co., 219 S.W. 80; Kuhlman v. Lt. & Tr. Co., 307 Mo. 607.

Seddon, C. Lindsay and Ellison, CC., concur.

OPINION

SEDDON

This is an original proceeding in certiorari, commenced in this court, wherein the relator, the city of Macon, seeks the quashal of the opinion, judgment and record of the Kansas City Court of Appeals in the certain cause, originally commenced in the Circuit Court of Macon County and ruled on appeal by said Court of Appeals, entitled "Albert Downey, Plaintiff and Respondent, v. City of Macon, Defendant and Appellant." The plaintiff in said cause, Albert Downey, recovered a judgment against the city of Macon, a municipal corporation, in the sum of $ 1000 for personal injuries claimed to have been suffered by plaintiff as the result of an electrical shock, alleged to have been occasioned by the negligence of the said municipal corporation. The judgment nisi was affirmed by the Kansas City Court of Appeals, and relator claims that the decision and opinion of said Court of Appeals, affirming said judgment, is in conflict with controlling decisions of this court.

The evidentiary facts in said cause, and the averments of the pleadings upon which the cause was tried and submitted in the circuit court, are thus stated in the opinion of the respondent Court of Appeals:

"The facts of record are that defendant is a city of the third class and, as such, owns and operates a plant for the manufacture and distribution of electricity to consumers through the usual channels and by the use of the usual appliances and attachments for such purposes. At the time of the occurrence which furnishes a basis for this action plaintiff was a resident of that part of the defendant city which lies west of the Wabash Railroad tracks which run north and south through said city and west of the main business section thereof.

"On October 9, 1926, plaintiff, who was and for some time had been a consumer of the electric product of said city, lived with his wife and small son with his wife's parents, Mr. and Mrs. Steve Hurst, in the home of the latter on the north side of Lakeview or Weed Street and on the west side of Wentz Street. This residence and a private garage on the premises were served with electricity from the electric lines owned and operated by defendant. It is in evidence that at that time there was no other manufacturer or distributor of electricity to the consumers than the city of Macon itself. It also appears that the wiring of the Hurst premises had been done by the plaintiff who had had some experience in such matters, but defendant claims the work was 'extremely crude.'

"The primary wires of defendant carried 2200 to 2300 volts of electricity. Such a wire ran west on Lakeview or Weed Street, from which secondary wires carrying approximately 110 to 115 volts came into the Hurst residence through a meter situated on the porch, on the east side thereof. Using wires from the meter, plaintiff had constructed a line to the barn on the premises and erected a pole some fifteen feet high upon which to convey the same. These wires entering the barn had been scraped by plaintiff and two wires taped onto them which ran into the wooden garage, already mentioned, about twenty to eighty feet distant. Between this garage and the Hurst residence was a milk house into which two wires had been dropped down for a drop light therein. The said line was higher at the pole than where it entered the garage. The line entered the garage through a piece of rubber hose the size of a garden hose.

"It appears that originally the wires had been attached to a socket in the middle and near the front end of the garage and were there fastened to one of the rafters three or four feet from where it entered the building. Afterwards an extension cord about fifteen feet in length was attached to these wires near the point of entrance to the garage. This cord had a brass socket on the end in which a small light bulb was placed for the purpose of furnishing light in working on the automobile, and was capable of being carried from place to place therein within the limits of the length of the said drop cord. It is claimed by defendant that the wire on a portion of this extension cord was 'patched up' and was unfit for such use. The garage in question was rectangular in shape, longer north and south than east and west, and was of sufficient length to accommodate a Ford car, with room to work around it, and with a board bumper at the north end. The garage was built of ship-lap and without lining, and had a concrete footing along the ends and sides and a floor of dirt and cinders. There was a drain around the building on the outside for the purposes of keeping the garage dry during all seasons.

"On October 9, 1926, at about eight o'clock in the morning as shown by the evidence, plaintiff, wearing a pair of boots with rubber heels and soles of rubber or composition, was standing on the oak plank (which he claims was perfectly dry), near the rear or north end of the garage and, while so standing, he took hold of the said drop cord and received a shock of electricity which knocked him down, rendered him unconscious and severely...