Mollman v. Union Electric Light & Power Co. , 206 Mo. App. 253 ( 1921 )

This is an action for damages for personal injuries alleged to have been sustained by plaintiff, and caused by trespass by a "meter reader" who was at the time an employee of defendant, and in the discharge of his duties as such. Plaintiff recovered judgment in the sum of $500, and defendant appeals, urging two assignments of error as grounds for reversal: First that the court erred in not directing a verdict for defendant; second that the court erred in giving instruction No. 1 for plaintiff.

The facts are brief. In the forenoon of March 8, 1917, between ten o'clock A.M. and noon on that day, the defendant's "meter reader," a young man about seventeen years of age, went upon the premises known as 4147 Pleasant Street, St. Louis, for the purpose of reading the meter that had been placed in this house under and by virture of the terms of a written contract which had been entered into prior to this date, between plaintiff's husband and the defendant. It is provided by the terms of this contract "that the duly authorized agents of the company shall have free access to the meters and service at all reasonable times, and for any and all purposes incident to this agreement and may also have access at all reasonable times to the premises for the purpose of examining the consumer's connected load. The employees of the company may, upon failure of the consumer to comply with any of the rules of the company, remove its meters and service and discontinue the supply." The husband was not at home at the time. There was also a daughter living at this home, but she was employed and was not present. At the time of the alleged trespass, plaintiff was in the kitchen of her home, standing near the sewing machine preparing to do some sewing. The meter was located in this kitchen. With plaintiff in the kitchen were two small children, one eight and the other four years of age. Plaintiff stated that at this time the "meter reader" opened the kitchen door, which was fastened, or as she described it, "burst right into the door" without knocking or announcing his presence in any manner. At the time he did this she states that she exclaimed: "My God! Why didn't you knock?;" that the "meter reader" stepped over to the meter and announced: "Union Electric." Plaintiff was about three feet away from the door at this time. She didn't know the man, and had no knowledge of his presence about the premises until he pushed the door open, rushed in, and made the announcement as heretofore stated. Plaintiff became greatly frightened, fainted, and fell over on the sewing machine, where she was later discovered by some neighbors who were brought in at the solicitation of one of the little children. It was something like one hour before plaintiff regained consciousness. She was then confined to her bed for about seven weeks, under the treatment and care of a physician, and at the time of the trial, several months later, was still in a nervous condition.

The "meter reader" testified at the trial of this case that there was some one in the back yard hanging out clothes when he arrived on these premises, and stated that he was advised by such person in the rear to go on into the kitchen and read the meter. Plaintiff testified, in rebuttal, that no one was at home that day except those heretofore mentioned, nor was any one in the back yard hanging out any clothes at any time during that day.

Defendant earnestly insists that by virtue of the terms of the contract above referred to, defendant would not be liable because it would have a right to enter these premises at all reasonable times for the purpose of reading the meter, and that the time of the day at which its agent entered the premises was a reasonable time. We are cited to numerous authorities to sustain this contention. It is unnecessary to enumerate in detail all the authorities cited by defendant in this connection, but the two cases upon which it seems to rely mainly are Hitchcock v. Essex Hudson Gas Co., 71 N.J.L. 565, and Bradley v. Sobolewsky,91 Conn. 492.

In Hudson v. Essex Hudson Gas. Co., supra, the agent of the gas company had applied for permission to enter plaintiff's home for the purpose of removing a meter. Certain bills were unpaid, and defendant claimed the right to enter the premises by virtue of the terms of a contract similar to this one. The agent was refused admission in the morning, and in the afternoon he came to the house again and forced an entrance into the cellar door for the purpose of removing the meter. The court, in that case, makes use of the following language:

"It must be noticed that at a reasonable time the defendant's agent applied to the person in charge of the plaintiff's house for permission to do the very thing authorized by the plaintiff — to have free access to the meter and remove the same; that, such permission being refused, he subsequently at a reasonable time exercised the authority thus given, without using any more force than was necessary, and without causing in the slightest degree any personal disturbance."

In this case, defendant's agent neither knocked, requested permission to enter, nor announced his intention of entering, nor can it be said that he caused no disturbance by entering. We do not think there is anything said in the case above cited to warrant the conclusion that defendant's agent was justified in entering this house in the manner in which he did. It is neither controlling nor persuasive authority for the conduct of defendant's agent in the case at bar.

In Bradley v. Sobolewsky, supra, plaintiff had sued for damages resulting from being bitten by a dog, while on the premises of defendant. He had been directed to go to certain premises by his employer for the purpose of making some examination in connection with fixtures placed there by his employer. By mistake he had gone upon the wrong premises. This case is not at all similar to the present case, and adds nothing to a proper determination of the question now at issue.

We do not wish to be understood as holding that defendant did not have a right to send its agents to these premises, and that it did not have a right to free access at reasonable times for the purpose of reading the meter, but the mere fact that it may have free access under the terms of this contract, certainly did not mean that its agent had a right to enter in the manner in which he did without knocking or making any announcement of his presence or business. He could have knocked at the door and announced who he was, and for what purpose he was upon the premises, and not have pushed open the kitchen door and rushed in, and then after the damage had been done, announced his presence and business. This contract did not authorize the invasion of the sanctity of this home in the manner and under the circumstances in which access was gained in the present case. If defendant's agent had knocked at the door, announced who he was, and his business, and had been refused admission, it would then have been ample time to have taken other steps necessary to gain admission. We will not lend our approval to this conduct or justify it under the sanction of law. There was no error in the court's failure to direct a verdict for defendant, for even though defendant be entitled to free access at reasonable times, the entry must be made in a lawful and reasonable manner.

It is also contended that the injury suffered resulted from fright, and that recovery cannot be had for physical injuries resulting from fright, in the absence of contemporaneous injury, unless the fright is the proximate result of a wrongful act. It was shown in this case that plaintiff suffered from hysteria, or ample evidence from which the jury might have inferred that such was her condition.

There are many conflicting decisions on the right to recover for physical injuries resulting from fright caused by a wrongful act, but the general rule is, in cases of this character, that if the injury is directly traceable to the unlawful invasion of plaintiff's rights, then such recovery may be had. [Bouillon v. Gas Co., 148 Mo. App. 462, 129 S.W. 401; Lesch v. Great Northern Railway Co., 97 Minn. 503; Watson v. Dilts, 116 Iowa 249; Newell v. Whitcher, 53 Vt. 589; Armstrong v. Montgomery Street Railway Co., 123 Ala. 233.]

In speaking upon this proposition, and under a somewhat similar state of facts, the Supreme Court of Minnesota, in Lesch v. Great Northern Railway Co., supra, say:

"The defendant's last contention is that the plaintiff's fright and resulting illness were not the proximate result of the acts of defendant's employees complained of. We are of the opinion that the evidence is sufficient to sustain the finding of the jury in favor of the plaintiff on this question. It is a matter of common knowledge that fright may, and often does, affect the nervous system to such an extent as to cause physical pain and serious bodily injury. The acts complained of in this case were, if committed, an outrageous invasion of the sanctity of the home and the constitutional rights of the citizen, well calculated to frighten the wife and mother left alone in charge of her home. Whether she was frightened by such acts, and whether her illness, which immediately followed, was the proximate result of such acts, were questions of fact for the jury."

It is next contended that the instruction given for plaintiff was erroneous because it narrowed the issues and did not require the jury to find that the trespass was "wanton" when such was alleged in the petition. Plaintiff, however, abandoned her claim for punitive damages when the case was finally submitted to the jury, and therefore there was no error in the giving of this instruction. The question of defendant's liability under the evidence in this case, was for the jury, and this jury, upon the record before us, evidently dealt fairly with defendant.

The Commissioner recommends that the judgment be affirmed.