Warren v. Missouri And Kansas Telephone Company

• Court: Missouri Court of Appeals
• Writing for the Court: STURGIS, J.
• Citation: Warren v. Missouri And Kansas Telephone Company, 196 S.W. 1030, 196 Mo.App. 549 (Mo. App. 1917)
• Decision Date: 26 June 1917
• Parties: M. T. WARREN, Respondent, v. MISSOURI AND KANSAS TELEPHONE COMPANY, Appellants

196 S.W. 1030

196 Mo.App. 549

M. T. WARREN, Respondent, v. MISSOURI AND KANSAS TELEPHONE COMPANY, Appellants

Court of Appeals of Missouri, Springfield

June 26, 1917

Rehearing Denied July 24, 1917.

Appeal from Greene County Circuit Court.--Hon. Arch A. Johnson Judge.

AFFIRMED.

Judgment affirmed.

Sebree & Orr and D. E. Palmer for appellant.

Hamlin Collins & Hamlin for respondent.

STURGIS, J. Farrington, J., concurs; Cox, P. J., dissents.

OPINION

STURGIS, J.

It is practically agreed that plaintiff was injured by an electric shock in attempting to use one of defendant's telephones; and so a jury found. The defendant appeals from a judgment in plaintiff's favor.

The plaintiff's petition, which is assailed as being insufficient, alleges that defendant owned, controlled and operated a telephone system in Springfield, Missouri; that same was operated by the use of wires, receivers, transmitters and electricity; that plaintiff was in the employ of one White, for whose use in his butcher shop defendant had installed one of its telephones; that it was the duty of defendant to keep its telephones, wires and apparatus in a safe condition so as to be used by patrons with safety; that plaintiff, in discharge of her duties and while using due care, attempted to use said telephone in answer to a ring or call of same "and in so doing took hold of the transmitter with one hand and the receiver with the other at which time, by reason of the negligence of the defendant in the operation of the telephone system as aforesaid, she was suddenly struck by electricity and instantly and violently knocked down by reason whereof" she suffered injuries to her damage, etc. Plaintiff's evidence supports these allegations.

The defendant attacks the petition as charging negligence in general terms without specifying the facts showing negligence and that the petition fails to state facts to which the rule of res ipsa loquitur would apply. Defendant's argument is that since plaintiff alleged that defendant operated the telephone system by use of wires, receivers, transmitters and electricity and that defendant's duty was to keep its telephones, wires and apparatus in a safe condition so that same could be used with safety, the allegations that the injury resulted "by reason of the negligence of the defendant in the operation of its telephone system as aforesaid" can refer only to the duty previously alleged, to-wit: to keep the telephones and apparatus used in connection therewith in a safe condition. It is then argued that the law does not require defendant to keep its telephones and equipment, in a safe condition or so as to be used with safety, but only to use due care (whether ordinary care or the highest degree of care the authorities are said to be in conflict) to keep same safe and so as to be used with safety. The defendant would then have this court draw the conclusion that since plaintiff has not alleged a duty which the law requires the alleged violation of a duty not required is not an allegation of negligence.

We do not agree that there is any conflict of authorities in this State that defendant is required to use the highest degree of care practical in making safe the use of its phones but we do agree that, strictly speaking, defendant is not required to keep its telephones and apparatus used therewith safe or so as to be used with safety. It is only required to use the highest degree of care practical in this respect and is not an insurer. The instructions given are to this effect. The petition does not accurately state defendant's duty and an instruction imposing on defendant the duty to keep its phones and equipment safe instead of using the highest degree of care to that end might properly be held erroneous. No case is cited holding that a petition is fatally defective on this account, especially so after verdict. A petition is not always to be judged by the strict rules of logic or absolute accuracy in its statements, but rather by whether it fairly informs the defendant of the issues to be tried. The petition was not attacked in any way in the trial court and we decline to hold it fatally defective.

Moreover the clause of the petition stating defendant's duty with reference to keeping the phones safe for use is only a statement of the law and may be entirely rejected as surplusage. Being surplusage, its accuracy is not material.

The next question is whether the facts pleaded and proved warrant the application of the doctrine of res ipsa loquitur. The plaintiff proved the alleged facts that when she attempted to answer a call or ring of the phone and took hold of the receiver and transmitter in the usual way, she received a severe shock rendering her unconscious. The defendant, after its demurrer to the evidence was overruled, undertook to explain the cause of the injury and exonerate itself from any negligence. It showed that the currents of electricity used in the operation of the phone were of such low voltage that the shock could not have been caused thereby. "The defendant then accounts for the shock plaintiff did receive" by showing that a thunderstorm with nearby flashes of lightning occurred at or about the time of the injury. The evidence raises a strong inference that plaintiff's shock was caused by lightning striking the wires at some point and then passing along same to this telephone.

Does the doctrine of res ipsa loquitur apply to the facts thus pleaded and proved? There is less doubt on this point as to the facts pleaded than to those proved, for it is only by the proof that the element of lightning is brought into the case. Without that element the thing complained of, to-wit: the electricity, wires, receivers, transmitters, etc., were clearly under the sole control and management of the defendant. The plaintiff had no control of these instrumentalities and no means of knowing the cause of her injury except the bare fact that the defendant furnished a telephone for her use and held it out as being safe for that purpose; that she attempted to use it for the purpose and in the way it was intended and in so doing was injured. This occurrence was so unusual and contrary to what usually happens as to show that something was wrong and this something wrong being with the instrumentalities solely under defendant's control the doctrine of res ipsa loquitur applies. [Shearman & Hedfield on Negligence, sec. 58b; Curtis, Law of Electricity, sec. 592.]

With the element of lightning introduced in the case (by defendant, however), the defendant asserts that the necessary basis of this doctrine is lacking because the current of electricity from the lightning was not under defendant's control. This argument is more plausible than in accord with sound legal reasoning. Storms and floods are not under the control of human agency, but if a passenger is injured by derailment of a train the doctrine of res ipsa loquitur would not disappear by a mere showing that the track was undermined by water from a rainstorm. The very fact that storms and floods and lightning are destructive makes it necessary to use...