Stecher v. Southwestern Bell Telephone Company

• Decision Date: 07 February 1931
• Docket Number: 29,584
• Parties: WATSON STECHER, Appellee, v. THE SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant
• Court: Kansas Supreme Court

295 P. 709

132 Kan. 362

WATSON STECHER, Appellee, v. THE SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant

No. 29,584

Supreme Court of Kansas

February 7, 1931

Decided January, 1931.

Appeal from Sedgwick district court, division No. 4; ISAAC N WILLIAMS, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TELEPHONES--Injury from Maintenance--Evidence of Negligence. In an action for damages for personal injuries alleged to have been sustained by lightning which came into the house over the telephone wires of defendant, and because of its negligence, the record is examined and it is held that there was no substantial evidence that the lightning entered the house over the telephone wires, or that any negligence of defendant contributed to plaintiff's injury.

2. NEGLIGENCE--Furnishing Appliances for Use of Others--Necessity of Furnishing Latest Type. Where there are two devices designed to arrest excess current of electricity in passing over a telephone wire, one being newer in design than the other, but both constructed on the same principle and identical in operation so far as they act as protectors against lightning, the fact that the telephone company was using the older instead of the newer design does not establish negligence on its part.

3. PRINCIPAL AND AGENT--Authority of Agent to Bind Principal. An employee of defendant was sent to make repairs on a telephone. It is not shown that he had any other authority. Held, that remarks made by him at a time he was not making such repairs are not binding on the telephone company.

John Mohler, of Topeka, for the appellant; W. F. Lilleston, of Wichita, of counsel.

C. G. Yankey, John L. Gleason, Kenneth K. Cox, C. H. Brooks, Willard Brooks and Howard T. Fleeson, all of Wichita, for the appellee.

OPINION

HARVEY, J.:

This is an action for damages for personal injuries alleged to have been sustained from a shock of lightning which entered the room in which plaintiff was sitting, because of the negligence of defendant. The jury answered special questions and returned a general verdict for plaintiff. Defendant has appealed.

Appellant's principal contention is that there is no evidence of negligence on its part, that its demurrer to plaintiff's evidence should have been sustained, and that answers to certain special questions should have been set aside for that reason. Appellant also complains of the introduction of certain evidence and of some of the instructions given by the court, and the refusal of the court to grant a new trial.

We shall first examine the record to see if there is any substantial evidence showing negligence of the defendant and to support the answers to special questions and the general verdict. The pertinent evidence in behalf of plaintiff may be summarized as follows: Plaintiff, a young unmarried man about 28 years of age, made his home with his parents and a sister on a suburban tract a few miles from Wichita. The house in which they lived faced to the west, and across the front of it was the sitting room. Just back of that was the dining room. There was an opening between these rooms a little larger than for a double door. To the south of the dining room was a screened-in porch. About midway of the partition between the dining room and the porch was a window, and to the west of that a door. Back of the dining room was a kitchen, and to the south of that was a storage room used at times for wood and coal. When the family moved to the place in 1915 there was a telephone in the house, the telephone instrument being on the dining-room wall just west of the window in the partition between the dining room and the porch. At that time the lead-in wires of the telephone came into the porch and were grounded to a rod just west of the window in the porch, which extended down through the floor of the porch into the ground. About a year after the family moved to the place the telephone installation was changed so that the lead-in wires came to the south side of the storage room about midway east and west, inside of which room and on the south wall the protector was installed. The telephone wires were strung from the protector west to the corner of the storage room, then north in the storage room to a place in the partition opposite to the south side of the dining room, west through that partition, and along the top of the window to the west side thereof and down to the telephone instrument, which was placed lower than it had been and so a person could use it while sitting in a chair. That arrangement of the installation of the telephone has continued since it was made. At the time this change was made the old rod on the porch, used to ground the telephone, was left in place and a piece of wire was left tied to it, extending up to about the top of the window, where it had been cut in two. Plaintiff had spent much of his time looking after an orchard on the place and a chicken business there conducted, but a few months prior to May 20, 1927, had been a traveling salesman for a tobacco company, a business his father had been engaged in for many years. On May 20, 1927, plaintiff was operated on at a hospital for appendicitis and remained at the hospital nineteen days, and went home and was recuperating, and planned soon to return to his work. About 5:30 o'clock in the afternoon of June 16, 1927, plaintiff was sitting in a wooden rocking chair in the opening between the dining room and sitting room and facing the dining-room table. The family had had dinner, his father had gone to the barn, and his mother had stepped out of the dining room. He testified that a severe electrical storm came up, "there was a real loud clap of thunder and lightning, and, as the lightning hit, why, it sent flashes of fire about six or seven feet out from the telephone, big flashes, and as each flash came from the telephone, it felt as though someone had a dull knife just trying to cut on my insides. . . . I was sitting right about in the middle of the partition, about seven feet from the phone, when the lightning hit. . . . I saw the lightning flashes come from the telephone."

"Do you know whether these flashes struck you? A. I couldn't say as to that."

He called to his mother. She came, put him to bed, where he remained about two days, and later had to go to the hospital for treatment. There was much other evidence with respect to the effect of this shock upon plaintiff, and his condition up to the time of the trial. We need not detail that evidence, for the principal question here presented is whether plaintiff can recover at all, and if so, whether a new trial should be granted because of trial errors. Plaintiff did not see the room in which the telephone was, to observe it, until after the telephone was repaired. When he did observe it the curtain covering the window was scorched black and there was a hole burned through the wall of the house. That hole was about three feet above the telephone instrument. This hole on the inside of the dining room was about as big around as a quarter, and "on the inside is burned around just like real fire had gone through."

"Q. And no burn on the outside? A. Just a heavy blast, or charge, right against the wall.

"Q. Was it burned on the outside? A. Not that I know of.

"Q. The hole was bigger on the inside than on the outside, wasn't it? A. Yes, sir."

This hole was a short distance, perhaps an inch, from the telephone wires. The telephone wires were burned in two. The next day, or within a few days after the lightning struck the telephone, a man came out to repair it.

"Q. What did he do, if anything? A. He went into the room where the arrestor was, and made some repairs there, and spliced a wire right above the telephone, where it was burned in two. . . .

"Q. Now, was anything said between you and him, at the time that he came out? . . . [This was objected to unless it was shown what his authority was, and for the further reason that his authority had not yet been shown, he might not bind the company at all.] A. I asked him what was wrong, and he said there was something wrong with the fuses, and then something about some plates that weren't right.

"Q. What did he say? A. He said there was something wrong with it.

"Q. Did he say anything else? A. No, sir; because I didn't stay in there all the time that he was there."

Later a change was made; they put on a new receiver and a new arrestor.

"Q. Did you watch what he did out there? A. Oh, I noticed he said something about some fuses, and some plates, not being right; and that's all I noticed; only, later on, when he repaired and spliced the wire where it had been burned in two."

After that was done the telephone worked. It had worked on June 16, before the lightning struck. So far as plaintiff knew, the repair man did not replace any of the inside or outside wiring. The inside wire has never been changed.

"Q. Have you ever examined that wire? A. I only noticed that the wiring, as it comes from the arrestor to the telephone, where it goes through the hole in the wall above the sill, there is no tubing whatever around that wire as it goes through the wall of the house. . . . It goes through the wall there, through the wood. . . .

"Q. You didn't see any evidence of wood being burned around there, did you? A. No, sir; the only evidence I noticed was that there wasn't a tube through the wall of the house.

"Q. You don't know whether lightning made that hole going in, or coming out? A. No, I don't know; all I know, it came through the telephone, and there was a flash before the telephone.

"Q. I mean, when it came through the house; you don't know where it came into the house first? A. No, sir."

The flashes were large and flashed out six or seven feet from the...