State v. Trimble

• Citation: 262 S.W. 357
• Decision Date: 22 March 1924
• Docket Number: No. 24218.,24218.
• Court: United States State Supreme Court of Missouri
• Parties: STATE ex rel. KANSAS CITY LIGHT & POWER CO. v. TRIMBLE et al., Judges.

262 S.W. 357

STATE ex rel. KANSAS CITY LIGHT & POWER CO. v. TRIMBLE et al., Judges.

No. 24218.

Supreme Court of Missouri, in Banc.

March 22, 1924.

Motion for Rehearing Overruled May 13, 1924.

Certiorari by the State, on the relation of the Kansas City Light & Power Company, against Francis H. Trimble and others, Judges. Writ quashed.

For opinion of Court of Appeals, see Godfrey v. Kansas City Light & Power Ca., 213 Mo. App. 139, 247 S. W. 451.

John E. Lucas, William C. Lucas, and Ludwick Graves, all of Kansas City, for relator.

Garrett, Howell & Boley, John J. Hyde, and Atwood, Wickersham, Hill, Levis & Chilcott, all of Kansas City, for respondents.

WALKER, J.

Certiorari is invoked to quash the record of the Kansas City Court of Appeals in the case of Godfrey v. Kansas City Light & Power Company, 213 Mo. App. 139, 247 S. W. 451, which affirmed a judgment of the trial court in that case in favor of the plaintiff.

The ground urged in support of the relief prayed is that prescribed by the Constitution, viz. a conflict in the rulings of the Court of Appeals with decisions of this court. Various phases of this contention are presented, based upon the relator's interpretation of the opinion. The facts disclosed by the opinion are that the original action was brought by a father for the loss of the services of his son, a boy 12 years of age, due to injuries received by the latter through the negligence of the Light & Power Company, the relator here. The result of the Court of Appeals' ruling was to affirm a judgment of the trial court in plaintiff's favor in the sum of $4,910.

In the environs of Kansas City there was a tract of land of 205 acres, called "the Mc-Elroy Place," on which there was a greensward of grass, a pond of water, and a row of walnut trees. Here, seeking respite for a time from the routine of their daily toil, persons met in social intercourse and picknicked under the inviting shade of the walnut trees. Little children exuberant with life played upon the green, bathed in the pond, and climbed the walnut trees in sport or to shake down the nuts ripening in the autumn sun. Through the limbs of one of these trees ran one of the Light & Power Company's uninsulated wires, carrying an electric charge of 2,300 volts. On the day of the injury plaintiff sent his son to look after some stock being pastured in this field. After attending to the errand the boy, with a little companion, climbed the walnut tree through the limbs of which the uninsulated wire ran. This tree did not stand upright, but in a leaning position, and its numerous low' limbs rendered it easy to be climbed by children. At the time it was in full leaf. The two boys climbed the tree to shake down the nuts, and others stood below to gather them. As plaintiff's son began to climb down out of the tree his hand touched the heavily charged wire amid the leaves, he lost his balance, and in falling his face came in contact with the wire, which he involuntarily grasped with his left hand, and was suspended therefrom when he was caught and released by one of the boys on the ground, who was stricken to the earth, by the shock he received when he caught hold of the plaintiff's son and released him from the deadly current. Contact with the wire rendered the latter unconscious. He was taken to his home in his father's arms, and after 17 days' care and nursing he was removed to a hospital for further general treatment and extensive skin grafting found to be necessary on account of his injuries. During six weeks' stay in the hospital skin was removed from other parts of his body and grafted upon his chin, forehead, and face, upon each of which deep burns had been inflicted. Added to these injuries necessitating this heroic treatment, one of his ears was almost burned loose from his head, so that without an operation it could not be normally reattached. To such an extent was his left hand injured by the contact with the live wire that at the time of the trial, a year and a half after the accident, it was shrunken, and the muscles atrophied, so that he had but a partial use of it, and found it necessary on account off its extreme sensitiveness to keep it continually covered. The scars from the burns on his face not only marred his countenance, but were accompanied by a painful drawing sensation when he attempted to use his facial muscles. An oculist testified that as a further consequence of the injuries the boy was suffering from chronic catarrhal conjunctivitis, or an inflammation of the inner surface of the eyelids; also that he was suffering from inflammation of the retina and optic nerve, due to degenerated or dead tissue resulting in a permanent impairment of his vision. There was evidence, not questioned, that the boy, as a result of the injury, was stunted In growth, having grown none since the injuries. In summing up the details of this pitiable condition, a physician testified that "there is an obscure result from the effect of electricity on the human system that is not now accountable for to the fullest extent; that it stunts, stops the growth, and destroys the nerve centers as it has done in this case."

At the close of all of the testimony the defendant asked the court to declare and instruct the jury that the plaintiff could not recover, and that they will so find.

I. This demurrer was based simply upon the insufficiency of the testimony to sustain the verdict. To render the remedy of certiorari applicable under this contention an adverse ruling of this court must be relied upon, based upon a state of facts parallel to those at bar. No such case is cited. While the facts stated by the Court of Appeals present, in our opinion, ample substantial testimony to sustain the verdict, the correctness of the court's conclusion is emphasized by a recent ruling of the Supreme Court based upon the same state of facts. In Godfrey v. K. C. Light & Power Co., 253 S. W. 233, a suit was brought by a next friend of the boy to recover damages for the same injuries for Which his father now seeks redress. Upon a trial of that case a judgment was rendered in the plaintiff's favor, and upon an appeal to this court the same was affirmed by Division No. 1. Upon a transfer of the case to the court en banc the divisional opinion was adopted. Not only were the pleadings in that case similar in all of their material allegations to those in the subsequent case brought by the father of the boy and upon which this application is based, but the testimony in both cases, involving as it did the same state of facts, was practically identical. Consequently, in addition to such a statement of the testimony by the Court of Appeals as carries upon its face a certificate of its sufficiency, we have the express ruling of the Supreme Court confirmatory of that conclusion. Instead, therefore, of the Court of Appeals ruling, so far as concerns the quantum of the testimony to sustain the verdict, being in conflict with the last previous ruling of this court, it is in complete harmony with the latter.

II. It is further contended the Court of Appeals' opinion contravenes rulings of this court in holding that the father of the boy who is the respondent here and the plaintiff in the original action, was authorized to sue for the loss of the boy's...