Opinion
No. 43064.
July 13, 1953.
APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY, CLAUDE E. CURTIS, J.
J. Grant Frye, Cape Girardeau, for appellant.
J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary Carter, St. Louis, for respondent.
Plaintiff filed this suit in the Circuit Court of Phelps County, Missouri, to recover $80,000 in damages from the defendant for personal injuries alleged to have been sustained on May 18, 1950, as a result of an electric shock which she claimed she suffered while using a telephone in her residence in Rolla, Missouri. A trial resulted in a verdict for the defendant and plaintiff appealed.
The only points briefed on this appeal are with reference to instruction No. 4 given by the court at defendant's request.
Plaintiff relied upon the res ipsa loquitur doctrine. She testified that on the afternoon of May 18, 1950, at about six o'clock, she was talking over the telephone at her home to Eva Boesch; that while so talking the following occurred:
"Q. And you know that you were talking to Mrs. Eva Boesch over the `phone? A. Yes, sir.
"Q. How long did you talk to her? A. Oh, just a matter of a few minutes.
"Q. Did anything unusual occur during that conversation? A. We never did get to finish it.
"Q. What happened? A. Well, I was listening at her talking and then I just heard a real loud report and a lot of fire and then that's all I remember."
Plaintiff claimed to have been seriously injured as a result of this electrical shock.
Plaintiff husband testified with reference to her condition after the alleged shock and stated that he used the telephone to call a doctor. The defendant admitted ownership of the telephone but denied that any defect existed in the equipment or that plaintiff was injured as a result of any negligence on part of defendant.
It is conceded that a jury could have found a verdict for either party depending on whether the jury believed plaintiff was or was not injured through the defendant's negligence. Therefore, a detailed statement of the evidence need not be made.
Plaintiff requested, and the court gave, the following instruction No. 1:
"The court instructs the jury that if you find and believe from the evidence that the defendant, United Telephone Company, had installed a telephone and apparatus used therewith in the residence occupied by the plaintiff, and if you further find that said telephone and apparatus used therewith was the property of the defendant and was under the control and management of defendant, then the court instructs you that it was the due obligation and duty of defendant to plaintiff to use the highest degree of care to keep and maintain said telephone and apparatus used therewith in a reasonably safe condition for use by the plaintiff and others at all times and regardless of weather conditions, and a failure of defendant to use such highest degree of care would constitute negligence and defendant would be responsible for all injuries resulting to plaintiff, if any, from such negligence, if any; and if you further find that on or about the 18th day of May, 1950, plaintiff was using said telephone and in the manner in which it was usually used, and that while so using said telephone she was struck by electricity and received an electrical shock transmitted to her by or through said telephone, if you so find, and that by direct result of said electric shock she was injured, then you are instructed that such facts, if you believe them to be true, are sufficient circumstantial evidence to warrant a finding by you that defendant was negligent, and you may so find, unless you find and believe from other facts and circumstances in evidence that the occurrence was not due to the defendant's negligence, and if you so find and believe from all the evidence in the case that the defendant was negligent and that the plaintiff's injuries, if any, were directly caused by the defendant's negligence, then your verdict should be for the plaintiff."
It will be noted that plaintiff relied on negligence on the part of the defendant telephone company for a verdict.
Instruction No. 4, alleged to be erroneous, reads as follows:
"The Court instructs the jury that, under the law, defendant did not insure or guarantee the safety of plaintiff from injury by the telephone referred to in the evidence and the equipment thereof, and you cannot and you must not find in favor of the plaintiff for any sum unless you find and believe from the evidence that the defendant was negligent and that such negligence, if any, was the direct and proximate cause of such injury, if any.
"Neither passion, prejudice nor sympathy should influence you in any manner in deciding this case for it is your sworn duty to try this case and decide it impartially according to the evidence and the instructions of the Court."
Plaintiff's first point claiming the abovequoted instruction to be erroneous is as follows:
"The giving of Instruction 4 was error, in that it is confusing and misleading and tended to weaken the effect of the evidence. Harke v. Hasse (Hasse) 335 Mo. 1104, 75 S.W.2d 1001; Schlemmer v. McGee, Mo.Sup., 185 S.W.2d 806".
Plaintiff's counsel has not, in his brief, informed this court wherein the opinion in the Harke case supports his contention. We have read the opinion and have noted that an instruction was held properly refused which told the jury that the charge of negligence must be proved to the satisfaction of the jury. The court said the instruction was confusing and misleading because in a res ipsa case there is not specific charge of negligence. Instruction No. 4, given in the case now before us, is not so worded. Again, plaintiff's counsel did not see fit to point out any ruling in the Schlemmer case, supra, which would tend to condemn instruction No. 4 under consideration here. We find nothing in that opinion in support of plaintiff's theory.
The second point briefed contending instruction No. 4 to be erroneous reads as follows:
"Instruction 4 is erroneous since this is a res ipsa loquitur case and fails to hypothesize or enumerate any facts. Jones v. Terminal R. R., Mo.Sup., 242 S.W.2d 473."
Plaintiff says that in the Jones case an instruction in a res ipsa case was condemned "on the ground that it left our one fact. Instruction 4 left out all facts." In the Jones case the instruction which was condemned required the jury to find, in order to return a verdict for the plaintiff, that the elevator where plaintiff was injured, was defective and that the defendant knew or could have known of the defect; that the defect could have been remedied but was not and plaintiff was injured as a result thereof. This court held the instruction erroneous because it limited plaintiff's recovery to a finding of known defective appliances and excluded negligence on the part of an employee. Instruction No. 4 in this case did not attempt to limit the jury to any specific finding of facts but only required the jury to find, before authorizing a verdict for plaintiff, that the defendant's negligence, if any, caused plaintiff's injuries. The Jones case is not in point on this question.
In the argument of the brief, plaintiff's counsel says the instruction was misleading because "The word `insure' has more than the meaning ascribed to it when referring to an insurance policy." We are of the opinion that the instructions, plaintiff's and defendant's, when considered together, could not have misled the jury. Instruction No. 4 is plain and unambiguous. It informed the jury that they must find for the defendant unless defendant was negligent and that such negligence was the cause of plaintiff's injury. Defendant was not an insurer of plaintiff. Instruction No. 4 was not erroneous. See Steffen v. Southwestern Bell Telephone Co., 331 Mo. 574, 56 S.W.2d 47, loc. cit. 51(12); West v. St. Louis Public Service Co., 361 Mo. 740, 236 S.W.2d 308, loc. cit. 312, 313; LeGrand v. U-Drive-It Co., Mo., 247 S.W.2d 706, loc. cit. 711-713(8).
The judgment is affirmed.
BOHLING and BARRETT, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.
All concur.