Williams v. Independence Water Works Co.

• Decision Date: 03 May 1943
• Docket Number: No. 20262.,20262.
• Citation: 171 S.W.2d 759
• Parties: LUCY WILLIAMS, RESPONDENT, v. INDEPENDENCE WATER WORKS CO., APPELLANT.
• Court: Missouri Court of Appeals

171 S.W.2d 759

LUCY WILLIAMS, RESPONDENT, v. INDEPENDENCE WATER WORKS CO., APPELLANT.

No. 20262.

Kansas City Court of Appeals, Missouri.

May 3, 1943.

Appeal from Jackson Circuit Court. — Hon. Marion D. Waltner, Judge.

REVERSED.

Tom J. Stubbs and J. Marcus Kirtley for appellant.

(1) The court erred in refusing to give defendant's peremptory instructions in the nature of a demurrer at the close of plaintiff's evidence and at the close of all the evidence in the case. (a) The franchise contracts of 1898 and 1918 by clear implication place the burden of constructing and maintaining lateral service lines on the consumer. Ordinance Number 1132, Revised Ordinances of Independence, Missouri, 1910, pages 268 to 278; Ordinance Number 6231, Revised Ordinances of Independence, Missouri, 1931, pages 246 to 255: (b) Absent a duty imposed by franchise contract on the appellant with respect to constructing and maintaining lateral service lines, the law imposes such duty on the consumer. Fisher v. St. Joseph Water Co., 151 Mo. App. 530, 132 S.W. 288; City of Joplin v. Wheeler, 173 Mo. App. 590, 158 S.W. 924; Goldsmith v. City of Kennett, 78 S.W. (2d) 146 (Not reported in state reports); Banty v. City of Sedalia & Sedalia Water Co., 120 S.W. (2d) 59 (Not reported in state reports); Birmingham Waterworks Co. v. Hernandez (Ala.), 71 So. 443; Josey et al. v. Beaumont Water Co. (Tex. Civ. App.), 183 S.W. 26. (c) Under the law and the evidence, plaintiff wholly failed to make a case sufficient for submission to the jury. Fisher v. St. Joseph Water Co., 151 Mo. App. 530, 132 S.W. 288; City of Joplin v. Wheeler, 173 Mo. App. 590, 158 S.W. 924; Goldsmith v. City of Kennett, 78 S.W. (2d) 146 (Not published in state reports); Banty v. City of Sedalia et al., 120 S.W. (2d) 59 (Not published in state reports); Birmingham Waterworks Co. v. Hernandez (Ala.), 71 So. 443; Josey et al. v. Beaumont Water Co. (Tex. Civ. App.), 183 S.W. 26; Sheffield Waterworks Co. v. Bingham (Eng.), 25 Ch. D. 443; Southend Waterworks Company v. Howard (Eng.), 13 Q.B.D. 215; State v. Gosnell, 116 Wis. 606, 93 N.W. 542; Franke v. Paducah Water Co., 88 Ky. 467, 11 S.W. 432, 718; Gleason v. Waukesha County, 103 Wis. 225, 79 N.W. 249; Prindeville v. Jackson, 79 Ill. 337; Donivan v. Oswego, 90 App. Div. 397, 86 N.Y.S. 155; Jackson v. Ellendale, 4 N.D. 478, 61 N.W. 1030; Warren v. Chicago, 118 Ill. 329, 11 N.E. 218; Kosmak v. City of New York, 117 N.Y. 361; Vinton Roanoke Water Co. v. City of Roanoke, 110 Va. 661, 66 S.E. 835; Tobin v. Frankfort Water Co., 158 Ky. 348, 164 S.W. 956; Windish v. Peoples Natural Gas Co., 248 Pa. 236, 93 Atl. 1003. (2) The court erred in giving plaintiff's Instruction No. 1. (a) There was no evidence in the record that defendant was under duty to maintain the meter box in question or that defendant knew, or could have known, by the exercise of ordinary care, of any defective condition of the meter box. Fisher v. St. Joseph Water Co., 132 S.W. 288, 151 Mo. App. 530; City of Joplin v. Wheeler, 158 S.W. 924, 173 Mo. App. 590; Banty v. City of Sedalia & Sedalia Water Company, 120 S.W. (2d) 59 (not published in state reports); Goldsmith v. City of Kennett, 78 S.W. (2d) 146 (not published in state reports). (b) The instruction was erroneous in that it singled out and emphasized certain parts of the evidence and commented on the evidence, to the prejudice of the defendant. Roth v. Roth, 142 S.W. (2d) 818 (not published in state reports); Zumwalt v. Chicago and A.R. Co., 266 S.W. 717, l.c. 726 (not published in state reports). (c) The instruction was erroneous in that it did not require the jury to find that the lid of the meter box in question was defective and dangerous in the particulars alleged and proved, but instructed the jury to find for plaintiff if the meter box lid was defective and dangerous in any respect. (3) The court erred in giving plaintiff's Instruction No. 2 because paragraph 2 thereof either was a reiteration of paragraph 1, thereby unduly emphasizing the subject-matter, or was a direction to the jury to take into consideration in assessment of damages the loss of earning capacity of plaintiff, whereas the record is silent with respect to plaintiff's earning capacity. Miller v. Williams, 76 S.W. (2d) 355 (not published in state reports); Fantroy v. Schirmer, 296 S.W. 235 (not published in state reports). (4) The court erred in refusing to discharge the jury upon timely motion by defendant's counsel because of prejudicial and improper remarks of plaintiff's counsel in his closing argument. 78 A.L.R. 1478, 1474; Jackman v. St. Louis & H.R. Co., 206 S.W. 244 (not published in state reports); Williams v. Columbia Taxicab Co., 241 S.W. 970 (not published in state reports); Beer et al. v. Martel, 55 S.W. (2d) 482 (not published in state reports).

C.R. Leslie, A.B. Taylor and Walter A. Raymond for respondent.

(1) The court properly overruled defendant's requested instructions in the nature of demurrers to the evidence. The evidence of defendant's negligence was substantial entitling plaintiff to have the issues submitted to the jury. Lucas v. St. Louis & S. Ry. Co., 174 Mo. 270, 73 S.W. 589, 591; Loundin v. Apple, 212 S.W. 891, 892; State ex rel. Shell Petroleum Corp. v. Hostetter, 156 S.W. (2d) 673, 675; 43 C.J., p. 1119, sec. 1880; Roper v. Wadleigh, 219 S.W. 982, 983; Seibert v. Mo. Pac. Ry. Co., 188 Mo. 657, 87 S.W. 995, 998; State ex rel. St. Louis Underground Service Co. v. Murphy, 134 Mo. 548, 34 S.W. 51, 52; City of Joplin v. Wheeler, 173 Mo. App. 590, 158 S.W. 924; Smith v. City of St. Joseph, 225 Mo. App. 886, 35 S.W. (2d) 975, 977; Hammack v. City of Sedalia, 105 S.W. (2d) 34, 36; Washington Gas Light Co. v. District of Columbia, 161 U.S. 316, 16 Sup. Ct. Rep. 564; Nord v. Butte Water Co., 96 Mont. 311, 30 Pac. (2d) 809, 813; Indianapolis Water Co. v. Schoenemann, 20 N.E. (2d) 671, 677; Harms v. City of Beatrice (Neb.), 5 N.W. (2d) 287, 289. (2) The court committed no error in giving plaintiff's Instruction No. 1. Roth v. Roth, 142 S.W. (2d) 818, 822; Lampe v. Kansas City, 49 S.W. (2d) 627, 630; Bilsky v. Sun Ins. Office, Limited, of London, England, (Mo. App.), 84 S.W. (2d) 171, 177; Allen v. Purvis, 30 S.W. (2d) 196, 201; Larey v. M.-K.-T.R. Co., 64 S.W. (2d) 681, 684; Duteny v. Pennichuck Water Co. (N.H.), 146 Atl. 161, 163; Jones v. Kurn (Mo.), 157 S.W. (2d) 797, 799; Gray v. Kurn, 345 Mo. 1027, 137 S.W. (2d) 558, 568; Stewart v. George B. Peck Co., 234 Mo. App. 864, 135 S.W. (2d) 405, 410. (3) Plaintiff's Instruction No. 2 is a proper and legal instruction which in no way prejudiced any right of defendant. Benfield v. Thompson, 139 S.W. (2d) 1009, 1012; Higgins v. Terminal R. Assn. of St. Louis, 231 Mo. App. 837, 97 S.W. (2d) 892, 897; Brackett v. James Black Masonry & Contracting Co., 326 Mo. 387, 32 S.W. (2d) 288, 291-292; Wild v. Pitcairn, 347 Mo. 915, 149 S.W. (2d) 800, 804, 805; Hengelsberg v. Cushing (Mo. App.), 61 S.W. (2d) 203, 204; Keehn v. D.R.F. Realty & Inv. Co., 328 Mo. 1031, 43 S.W. (2d) 416, 417; Moore v. Great Atl. & Pac. Tea Co., 92 S.W. (2d) 912, 916. (4) No exception was saved to the court's ruling on the objection to the argument of plaintiff's counsel hence the record is insufficient to present that point for review. Furthermore, an objection to such argument was sustained and the court did not abuse its discretion in failing to discharge the jury. Adams v. Quincy, O. & K.C.R. Co., 287 Mo. 535, 229 S.W. 790, 796; Kersten v. Hines (Mo.), 223 S.W. 586, 589; Young v. City of St. Joseph, 4 S.W. (2d) 1104, 1105; Kelso v. W.A. Ross Const. Co., 337 Mo. 202, 85 S.W. (2d) 527, 541; Tevlin v. Fed. Life Ins. Co. of Chicago, 127 S.W. (2d) 743, 748.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $4000, and defendant has appealed. The case was originally brought against the present defendant and the City of Independence but, at the close of plaintiff's evidence, she dismissed as to the City.

The facts show that defendant is the owner and operator of a waterworks system in the City of Independence; that on June 11, 1941, plaintiff was employed at 900 West White Oak Street, in that City and, while leaving the house enroute to enter an automobile, waiting in the front thereof, for the purpose of visiting her sick daughter, she stepped on a lid covering a meter box housing two meters belonging to the defendant, causing the lid, which was insecurely seated, to tilt. This resulted in plaintiff falling into the meter hole causing personal injuries to her for which she sues.

The meter box in question was about four feet in depth and the cover or lid was eighteen inches in diameter. The box was located in, and near, the lower edge of a three foot terrace in the yard in front of the house. The box was from four to eleven inches north of the sidewalk and entirely off of private property and in the public street. There was no direct evidence as to who installed the box. The present owner of the property moved there about the year 1922 and the conditions, at the time of the trial, were practically the same as they were when he moved into the property. No prior owner of the property testified. It is to be inferred from the evidence that the box was constructed sometime prior to 1915.

Plaintiff admits that the franchise ordinance of 1898 was in force and effect at the time the meter box was constructed. By this ordinance the City of Independence granted to the defendant a franchise to construct, maintain and operate a waterworks in and adjacent to the City of Independence and to distribute throughout the city wholesome water, to extend and lay down pipes and conduits throughout the streets, avenues, lanes or alleys and public grounds of the city. The city reserved the right to make and enforce all regulations as to streets, avenues, lanes and alleys on which the mains or pipes might be laid and to make proper regulations as to the...