State v. Cox, No. 23777.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtDavis
Citation250 S.W. 551,298 Mo. 427
Decision Date09 April 1923
Docket NumberNo. 23777.
PartiesSTATE ex rel. MISSOURI PUBLIC UTILITIES CO. v. COX et al., Judges.
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

250 S.W. 552

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...

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54 practice notes
  • Johnson v. Southern Railway Co., No. 38571.
    • United States
    • United States State Supreme Court of Missouri
    • 4 octobre 1943
    ...Co., 200 U.S. 480; N.Y.C.R. Co. v. Ambrose, 280 U.S. 486. This is also the rule in Missouri. State ex rel. Mo. Public Utility Co. v. Cox, 298 Mo. 427; State ex rel. City of Macon v. Trimble, 321 Mo. 671, 12 S.W. (2d) 727. (5) If the negligence of respondent's intestate was the sole cause of......
  • Bilsky v. Sun Insurance Office, Limited, No. 23381.
    • United States
    • Court of Appeal of Missouri (US)
    • 2 juillet 1935
    ...to speculation and conjecture as to the cause of the loss and damage. Swearinger v. R.R., 221 Mo. 644, 120 S.W. 773; State ex rel. v. Cox, 298 Mo. 427, 250 S.W., l.c. 551; Hamilton v. Ry. Co. (Mo.), 300 S.W. 787; Fire Asso. v. Evansville Brewing Asso. (Fla.) 75 So., l.c. 198; Rossini v. Sec......
  • State v. Richards, No. 32729.
    • United States
    • United States State Supreme Court of Missouri
    • 20 décembre 1933
    ...which was the only issue in the case, except by founding a presumption upon a presumption, which is improper. State ex rel. v. Cox, 250 S.W. 551; United States v. Ross, 92 U.S. 284; Harding v. Federal Life Ins. Co., 34 S.W. (2d) 198; State v. Porter, 207 S.W. 777; State v. Creed, 252 S.W. 6......
  • DeBuhr v. Taylor, No. 45935.
    • United States
    • United States State Supreme Court of Iowa
    • 20 novembre 1942
    ...conjunction of an acid and an alkali.” The foregoing pronouncement is cited with approval in State ex rel. Missouri Pub. Util. Co. v. Cox, 298 Mo. 427, 250 S.W. 551, 552. From the foregoing, it seems to me that, in a case where the estate of one deceased is made defendant and the issue is w......
  • Request a trial to view additional results
54 cases
  • Johnson v. Southern Railway Co., No. 38571.
    • United States
    • United States State Supreme Court of Missouri
    • 4 octobre 1943
    ...Co., 200 U.S. 480; N.Y.C.R. Co. v. Ambrose, 280 U.S. 486. This is also the rule in Missouri. State ex rel. Mo. Public Utility Co. v. Cox, 298 Mo. 427; State ex rel. City of Macon v. Trimble, 321 Mo. 671, 12 S.W. (2d) 727. (5) If the negligence of respondent's intestate was the sole cause of......
  • Bilsky v. Sun Insurance Office, Limited, No. 23381.
    • United States
    • Court of Appeal of Missouri (US)
    • 2 juillet 1935
    ...to speculation and conjecture as to the cause of the loss and damage. Swearinger v. R.R., 221 Mo. 644, 120 S.W. 773; State ex rel. v. Cox, 298 Mo. 427, 250 S.W., l.c. 551; Hamilton v. Ry. Co. (Mo.), 300 S.W. 787; Fire Asso. v. Evansville Brewing Asso. (Fla.) 75 So., l.c. 198; Rossini v. Sec......
  • State v. Richards, No. 32729.
    • United States
    • United States State Supreme Court of Missouri
    • 20 décembre 1933
    ...which was the only issue in the case, except by founding a presumption upon a presumption, which is improper. State ex rel. v. Cox, 250 S.W. 551; United States v. Ross, 92 U.S. 284; Harding v. Federal Life Ins. Co., 34 S.W. (2d) 198; State v. Porter, 207 S.W. 777; State v. Creed, 252 S.W. 6......
  • DeBuhr v. Taylor, No. 45935.
    • United States
    • United States State Supreme Court of Iowa
    • 20 novembre 1942
    ...conjunction of an acid and an alkali.” The foregoing pronouncement is cited with approval in State ex rel. Missouri Pub. Util. Co. v. Cox, 298 Mo. 427, 250 S.W. 551, 552. From the foregoing, it seems to me that, in a case where the estate of one deceased is made defendant and the issue is w......
  • Request a trial to view additional results

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