State v. Cox

• Decision Date: 09 April 1923
• Docket Number: No. 23777.,23777.
• Parties: STATE ex rel. MISSOURI PUBLIC UTILITIES CO. v. COX et al., Judges.
• Court: Missouri Supreme Court

250 S.W. 551

298 Mo. 427

STATE ex rel. MISSOURI PUBLIC UTILITIES CO. v. COX et al., Judges.

No. 23777.

Supreme Court of Missouri, Division No. 2.

April 9, 1923.

Certiorari to Springfield Court of Appeals.

Certiorari by the State, on the relation of the Missouri Public Utilities Company, against Argus Cox and others, Judges of the Springfield Court of Appeals, to quash a record of the Court of Appeals in the case of Book v. Missouri Public Utilities Company, 242 S. W. 433. Record and judgment of Court of Appeals quashed.

Sheppard & Sheppard, of Poplar Bluff, for relator.

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 $5,000. 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, loc cit. 25, 200 S. W. loc cit. 292, L. R. A. 1918C, 715, Ann. Cas. 1918E, 1127; Hamilton v. Railroad, 250 Mo. 715, loc. cit. 722, 157 S. W. 622; Swearingen v. Railroad, 221 Mo. 644, loc. cit. 659, 120 S. W. 773; State v. Lackland, 136 Mo. 26. loc. cit. 33, 37 S. W. 812; and Yarnell v. Railroad, 113 Mo. 570, loc. cit. 570, 21 S. W. 1, 18 L. R. A. 599—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; loc. cit. 596, 199 S. W. 978; Dick & Bros. Quincy Brewery v. Alison, 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 demonstrate: There were no eyewitnesses to the tragedy. Deceased was found dead prostrate on the ground, his feet about 18 inches north of the north line of the stockade, and about 20 inches east of the west line, and immediately under the nearest high-tensioned wire. If he had been standing, his head would have been 5½ to 6 feet from said wire. The stockade, about 13 feet square, was inclosed by a picket fence about 7 feet high, with no entrance. It housed transformers, which sat on the ground, to which, on poles, high-tensioned electric wires, 20 feet high and fastened to insulators, brough 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 3 or 4 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 Doles between two high-powered electric wires, and anchored in the ground, was a guy wire about 9 feet from which the dead body of deceased was found. The opinion of the Court of Appeals states that:

"The only explanation as to how he came in contact with it [the electricity] that can be thought of is that it escaped down this guy wire, or that plaintiff's husband purposely and voluntarily, and negligently, if you please, reached through the picket fence pen and touched the high-powered wire with the wire which was found near his hand after...