State ex rel. Missouri Public Utilities Company v. Cox

• Citation: 250 S.W. 551,298 Mo. 427
• Parties: THE STATE ex rel. MISSOURI PUBLIC UTILITIES COMPANY v. ARGUS COX et al., Judges of Springfield Court of Appeals
• Decision Date: 09 April 1923
• Court: United States State Supreme Court of Missouri

250 S.W. 551

298 Mo. 427

THE STATE ex rel. MISSOURI PUBLIC UTILITIES COMPANY v. ARGUS COX et al., Judges of Springfield Court of Appeals

Supreme Court of Missouri, Second Division

April 9, 1923

Transferred from Springfield Court of Appeals.

Opinion quashed.

Sheppard & Sheppard for relator.

(1) Respondents' opinion holding that the testimony set out in their opinion on rehearing was admissible is in conflict with the following authorities of this court: Koons v Railroad Co., 65 Mo. 592; Gutridge v. Railroad Co., 94 Mo. 468; King v. Railroad Co., 98 Mo 235; Brown v. Road Co., 89 Mo. 155. (2) In holding that the doctrine of res ipsa loquitur applied to the facts in evidence herein, respondents' opinion failed to follow the controlling decisions of this court on that question, to-wit: Pointer v. Mountain Ry. Const. Co., 269 Mo. 104; McGrath v. Transit Co., 197 Mo. 104; Removich v. Const. Co., 264 Mo. 43. (3) Relator says that there is nothing in this record showing it to be guilty of any negligence whatever; but to the contrary the undisputed proof and the physical facts -- in truth, the very facts which raise the presumption that Fred H. Book met death by electricity, conducted through the loose wire found near his hand -- show conclusively that he was killed through his own negligence solely. So that, even though res ipsa loquitur is held applicable, the presumption thereby created is overthrown by the facts in this case; and respondents' opinion to the contrary is in conflict with the following controlling decisions of this court: Guthrie v. Holmes, 272 Mo. 215; Mockowik v. Railroad, 196 Mo. 571; McKenna v. Lynch, 233 S.W. 175; Stack v. General Baking Powder Co., 223 S.W. 97. (4) The cause of Book's death was wholly speculative and conjectural; and in holding otherwise, respondents contravened the following decisions of this court: Root v. Ry. Co., 195 Mo. 367; Warner v. Ry. Co., 178 Mo. 134. (5) In their opinions herein respondents have builded inference upon inference, and presumption upon presumption, in arriving at the conclusion reached by them. In so doing they have run squarely counter to the following controlling decisions of this court on that proposition: Hays v. Hogan, 273 Mo. 25; Hamilton v. Ry. Co., 250 Mo. 722; Swearingen v. Ry. Co., 221 Mo. 659; State v. Lackland, 136 Mo. 33; Yarnell v. Ry. Co., 113 Mo. 579.

DAVIS, C. Higbee, C., concurs; Railey, C., not sitting.

OPINION

Certiorari.

DAVIS C.

-- The opinion of the Springfield Court of Appeals is reported as Book v. Missouri Public Utilities Co., 242 S.W. 433.

Suit for negligently permitting electricity to escape from wires, causing the death of Fred H. Book. In the court below, verdict and judgment for plaintiff administratrix for $ 5000. Judgment affirmed. Relator asks us to quash the record of the Court of Appeals for that its opinion disregards the latest rulings of this court.

Relator maintains, among other contentions, that the opinion of the Court of Appeals contravenes the last previous rulings of this court, on the subject, found in Hays v. Hogan, 273 Mo. 1, 200 S.W. 286; Hamilton v. Railroad, 250 Mo. 714, 157 S.W. 622; Swearingen v. Railroad, 221 Mo. 644, 120 S.W. 773; State v. Lackland, 136 Mo. 26, 37 S.W. 812, and Yarnell v. Railroad, 113 Mo. 570, for that plaintiff's recovery depends on combined presumptions.

In the Yarnell Case, Yarnell was found dead at the end of the depot platform, having been decapitated, it would seem, by the cars. The court found the record utterly barren of any testimony showing or tending to show how or in what way Yarnell came to his unfortunate death. The court was asked to presume that Yarnell was in the exercise of due care, and defendant was negligent. Held: "Not allowable to build one presumption on another, and thus make a cause of action."

In the Lackland Case, defendant was charged with stealing hogs. Ford never saw the hogs which defendant sold and no witness identified them as Ford's hogs. The jury were asked to erect presumptions of guilt and ownership. Held, that "one presumption cannot stand as a postulate and the other as an inference therefrom."

In the Swearingen Case, the deceased was last seen on the engine. In order to reach a car from which plaintiff contended deceased was knocked, by striking an iron post at the side of the track, while standing on a ladder examining a hot box, deceased would have had to walk over about ten cars. There was no evidence that the car was equipped with a side ladder, that deceased was struck by the post or how he met his death. Held, that it was sought to recover by building one presumption on another.

In the Hamilton Case, the body of deceased was found on the morning after two trains had traversed the track he was last seen to be walking on. Hence, it is legitimately inferable that he was struck by the train, but it was not legitimately inferable from any fact proven that he was seen or seeable on the track in a position of peril and at a distance sufficient to permit the stoppage of the train. Held, that it would be resting a second inference on a first inference.

In Hays v. Hogan, the father maintained and gave his son the use of an automobile whenever requested. Without obtaining consent, the son, on his own pleasure bent, in the use of it injured a public highway traveler. The court refused to build inferences that the son was the agent of his father and that the agent was acting within the scope of his authority.

In reviewing, by certiorari, the opinion of the Court of Appeals, we may only inspect the evidentiary facts found therein to ascertain if its ruling conflicts with the latest rulings of this court on the subject. [State ex rel. v. Reynolds, 272 Mo. 588, 199 S.W. 978, l. c. 596, 199 S.W. 978; Ex parte Dick v. Ellison, 287 Mo. 139, 229 S.W. 1059.]

The plaintiff pleaded general negligence, relying on the doctrine res ipsa loquitur. The Court of Appeals held the doctrine applicable to the facts.

The facts as related by it demonstrates: There were no eye witnesses to the tragedy. Deceased was found dead prostrate on the ground, his feet about eighteen inches north of the north line of the stockade, and about twenty inches east of the west line, and immediately under the nearest high-tensioned wire. If he had been standing, his head would have been five and one-half to six feet from said wire. The stockade, about thirteen feet square, was inclosed by a picket fence about seven feet high, with no entrance. It housed transformers, which sat on the ground, to which, on poles, high-tensioned electric wires, twenty feet high and fastened to insulators, brought 23,000 volts, and when reduced to 2,300 volts by the transformers, were used to operate the farm pump. The Court of Appeals found that all proper precaution had been taken in isolating the high-tensioned wires, and that the wires leading from the transformers to the pump used were carried at a reasonably safe distance above head. There was a burn in the palm of deceased's right hand, caused, it may be inferred, by a detached wire, some three or four feet long, found on the ground near his extended hand; and a burn on his foot or big toe, from which it may be deduced that electricity caused his death. Defendant owned and controlled the electric force in proximity to which deceased was found.

I. Leading from one of defendant's poles between two high-powered electric wires and anchored in the ground was a guy wire about nine feet from which the dead body of deceased was found. The opinion of the Court of Appeals states that "The only explanation as...