Opinion
No. 41556.
October 24, 1960.
1. Negligence — electricity — dangerous agency — duty of power company.
A public utility company is bound to exercise very highest measure of care and skill in dealing with such a dangerous agency as electricity.
2. Electricity — negligence — maintenance and operation of high voltage line.
In action against power company for damage to lumber plant caused by fire, evidence established negligence of defendant in the maintenance and operation of high voltage electric line in proximity to plant without a proper circuit breaker or fuse.
Headnotes as approved by Hall, P.J.
APPEAL from the Circuit Court of Sunflower County; JOHN D. GREENE, JR., Judge.
Lyon, Davis Cook, Indianola; Bethel Ferguson, Green, Green Cheney, Jackson, for appellant.
I. Admitting, arguendo, Power Company installed electric sign of Lumber Company, appellees' predicate for liability imposition is fire set out by an electric current when a wire fell across appellees' brace, attached permissively to appellant's pole. This current could not have flowed until appellees independently constructed the stucco front containing the iron wires, wherewith appellant had naught to do, the brace having been effectively insulated by exclusive contact with the wood sheeting. Mississippi City Lines v. Bullock, 194 Miss. 630, 13 So.2d 34; Mississippi P. L. Co. v. Summer Gin Co., 156 Miss. 832, 127 So. 284; Teche Lines v. Bounds, 182 Miss. 638, 170 So. 747; Thompson v. Mississippi Cent. R. Co., 175 Miss. 547, 166 So. 353; 38 Am. Jur. 702; 43 C.J.S. 1110.
II. Power Company, as owner of the pole, had a constitutional right to contract thereasto as a lessor and Lumber Company, as lessee, took under lease: there was no hidden danger unknown to lessee, consequently no legal responsibility. Bishop v. Stewart, 234 Miss. 409, 106 So.2d 899; Causey v. Norwood, 170 Miss. 874, 156 So. 592; Dry v. Ford, 238 Miss. 98, 117 So.2d 456; Evans v. Hill, 183 Miss. 7, 181 So. 847; Ford v. Pythian Bondholders Protective Committee, 223 Miss. 630, 78 So.2d 743; Hartford Fire Ins. Co. v. Chicago, M. St. P.R. Co., 175 U.S. 91, 44 L.Ed. 84; Hodges v. Hilton, 173 Miss. 343, 161 So. 686; Jones v. Millsaps, 71 Miss. 10, 14 So. 440, 23 L.R.A. 155; Kelley v. Sportsmen's Speedway, Inc., 224 Miss. 632, 80 So.2d 785; Levey v. Dyess, 51 Miss. 501; Lollar v. East Mississippi Oil Co., 234 Miss. 295, 106 So.2d 65; McDonald v. Willmut Gas Oil Co., 180 Miss. 350, 176 So. 395; Moss Point Lumber Co. v. Harrison County, 89 Miss. 448, 42 So. 290; Northern Pacific R. Co. v. United States, 356 U.S. 1, 2 L.Ed.2d 545; Plaza Amusement Co. v. Rothenberg, 159 Miss. 800, 131 So. 350, 65 F.2d 254, 290 U.S. 707, 78 L.Ed. 608; Rich v. Swalm, 161 Miss. 505, 137 So. 325; State v. Edward Hines Lumber Co., 150 Miss. 1, 115 So. 598; Vaughn v. McCool, 186 Miss. 549, 191 So. 296; Weldon v. Lehmann, 226 Miss. 600, 84 So.2d 796; Yazoo M.V.R. Co. v. Crawford, 107 Miss. 355, 65 So. 462; Annos. 25 A.L.R. 2d 722, 134 A.L.R. 507, 175 A.L.R. 8, 86, 94; 18 Am. Jur., Sec. 102 p. 498; 32 Am. Jur., Sec. 2 p. 27; 56 Am. Jur., Sec. 11 p. 456; 40 C.J. 1487; 29 C.J.S., Sec. 57a p. 611; 51 C.J.S., Sec. 2 p. 510; 92 C.J.S. 1027; 93 C.J.S., Sec. 11 p. 566; 10 Miss. Digest, "Landlord and Tenant", Key 125(2); Smith on Landlord and Tenant p. 240.
III. When Lumber Company had its sign installed upon Power Company's pole and such installation as initially made involved no danger of fire and thereafter, while utilizing said pole exclusively for its own benefit, said Lumber Company, without contract from Power Company, installed about said brace stucco containing iron wire, appellees assumed the risk. Anderson v. Cinnamon (Mo.), 282 S.W.2d 445, 55 A.L.R. 2d 516; Harris v. Gulf Refining Co., 240 F.2d 249, 55 A.L.R. 2d 527; Hiller v. Wiley, 192 Miss. 488, 5 So.2d 489, 6 So.2d 317; McDonald v. Willmut Gas Oil Co., supra; Mississippi P. L. Co. v. Goosby, 187 Miss. 790, 192 So. 453; Runnels v. Dixie Drive-it-Yourself System Jackson Co., 220 Miss. 678, 71 So.2d 453; Saxton v. Rose, 201 Miss. 814, 29 So.2d 646; 55 A.L.R. 2d 527.
IV. Assuming tort liability existent, appellees failed to prove liability and the verdict is unsupported by substantial evidence. Beresford v. Pacific Gas Elec. Co., 45 Cal.2d 738, 290 P.2d 498, 54 A.L.R. 2d 910: Bolian v. Washington-St. Tammany Elec. Cooperative, 218 La. 734, 50 So.2d 823, 25 A.L.R. 2d 716; Bunckley v. Jones, 79 Miss. 1, 29 So. 1000; Kaufman v. Pittsburg R. Co., 363 Pa. 96, 69 A.2d 90; Railroad Co. v. Cathey, 70 Miss. 332, 12 So. 253; Stewart v. Kroger Grocery, 198 Miss. 371, 21 So.2d 912; Thompson v. Mississippi Cent. R. Co., supra; Annos. 38 A.L.R. 2d 107, 54 A.L.R. 2d 922, 62 A.L.R. 2d 1426; Vol. 14, Encyclopedia Britannica p. 115-G; Vol. 14 The New International Encyclopedia p. 136.
V. Installation by appellees of stucco wires having possible ground connection about the end of appellees' brace could not have been foreseen by appellant so as to impose liability. Burnside v. Gulf Refining Co., 166 Miss. 460, 148 So. 219; Cumberland Tel. Tel. Co. v. Woodham, 99 Miss. 318, 54 So. 890; D'Antoni v. Albritton, 156 Miss. 758, 126 So.2d 836; Illinois Cent. R. Co. v. Bloodworth, 166 Miss. 602, 145 So. 333; Jabron v. State, 172 Miss. 135, 159 So. 406; Mauney v. Gulf Refining Co., 193 Miss. 421, 8 So.2d 249, 9 So.2d 780; Paramount-Richards Theatre v. Price, 211 Miss. 879, 53 So.2d 21; Roberts v. Mississippi P. L. Co., 193 Miss. 627, 10 So.2d 542; Shuptrine v. Herron, 182 Miss. 315, 180 So. 620; Southern Pine Elec. Power Assn. v. Denson, 214 Miss. 397, 57 So.2d 859; Sturdivant v. Crosby Lumber Mfg. Co., 218 Miss. 91, 65 So.2d 291; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Wright v. Illinois Cent. R. Co., 196 Miss. 150, 16 So.2d 381.
VI. Where there are several independent causes wherefrom the fire might originate, as was the case here, appellees have not made out their case. Speculation may not impose liability. Blizzard v. Fitzsimmons, 193 Miss. 484, 10 So.2d 343; Cumberland Tel. Tel. Co. v. Woodham, supra; Gulf Refining Co. v. Brown, 196 Miss. 131, 16 So.2d 765; Kellum v. Cooperative Creamery Assn., Inc., 238 Miss. 731, 120 So.2d 433; Magnolia Petroleum Co. v. Williams, 222 Miss. 538, 76 So.2d 365; Matthews v. Thompson, 231 Miss. 258, 95 So.2d 438. Robert D. Everitt, Ruleville; Watkins Eager, Jackson, for appellees.
I. Not only was there substantial evidence to support the verdict of the jury that the fire damage to appellees' plant was the proximate result of the negligence of the defendant, but such verdict is supported by the overwhelming weight of the evidence. Cumberland Tel. Tel. Co. v. Cosnahan, 105 Miss. 615, 62 So. 824; Farmers' Gin Co. v. Leach, 178 Miss. 784, 174 So. 566; 4-County Electric Power Assn. v. Clardy, 221 Miss. 403, 73 So.2d 144; Grice v. Central Electric Power Assn. (Miss.), 92 So.2d 837, 96 So.2d 909; Henry v. Mississippi P. L. Co., 166 Miss. 827, 146 So. 857; Laurel Light R. Co. v. Jones, 137 Miss. 143, 102 So. 1; Mississippi P. L. Co. v. Goosby, 187 Miss. 790, 192 So. 453; Mississippi Power Co. v. Thomas, 162 Miss. 734, 140 So. 227; Potera v. City of Brookhaven, 95 Miss. 774, 49 So. 617; Romano v. Vicksburg R. Light Co. (Miss.), 39 So. 781; Southern Pine Electric Power Assn. v. Denson, 214 Miss. 397, 57 So.2d 859, 59 So.2d 75; Whitescarver v. Mississippi P. L. Co. (Miss.), 5 F. Supp. 948; Williams v. City of Canton, 138 Miss. 661, 103 So. 811.
II. A. There is ample evidence in this record to support the jury verdict that the fire in appellees' building was caused by the live wire falling on the pipe. Beattie v. Boston Elevator R. Co. (Mass.), 86 N.E. 920; City of Brownsville v. Crixell (Texas), 275 S.W. 430; Cole v. Superior Coach Corp, 234 Miss. 287, 106 So.2d 71; Dickerson v. Southern Bell Tel. Co. (Miss.), 212 F.2d 107; 4-County Electric Power Assn. v. Clardy, supra; Goddard v. Enzler (Ill.), 78 N.E. 805; Kramer Service v. Wilkins, 184 Miss. 483, 186 So. 625; Mississippi Power P. L. Co. v. Goosby, supra; Sellers v. Montana-Dakota Power Co. (Mont.), 41 P.2d 44; Southern Pine Electric Power Assn. v. Denson, supra; Spinney's Admrx. v. O.V. Hooker Son (Vt.), 102 A. 53; Sudmeyer v. United Railway Co., 228 S.W. 64; Thornbrough Well Servicing Co. v. Brown, 223 Miss. 322, 78 So.2d 159; Totten v. Smith Bros. (Mo.), 3 S.W.2d 740; Western Tel. Corp. v. McCann (Texas), 126 S.W. 1004; Winters v. State, 142 Miss. 71, 107 So. 281; 32 C.J.S. 224, 228.
B. There is sufficient evidence in this record to support the verdict of the jury that the efficient and proximate cause of the fire was the live wire that fell on the pipe within a few feet of appellees' building. American Creosote Works of La. v. Harp, 215 Miss. 5, 60 So.2d 514; Cumberland Tel. Tel. Co. v. Woodham, 99 Miss. 318, 54 So. 890; 4-County Electric Power Assn. v. Clardy, supra; Grice v. Central Electric Power Assn., supra; Haynes v. Graves, 215 Miss. 353, 60 So.2d 812; City of Jackson v. Reed, 233 Miss. 280, 102 So.2d 342; Laurel Light R. Co. v. Jones, supra; Matthews v. Thompson, 231 Miss. 258, 95 So.2d 438; Mississippi City Lines v. Bullock, 194 Miss. 630, 13 So.2d 34; 65 C.J.S., Sec. 107.
C. Any lack of foreseeability by appellant of what actually occurred here after the live wire fell does not keep the falling of the live wire from being the proximate cause of the fire. Where, as here, an act is negligent it is not necessary to render it the proximate cause of injury, that the person committing it might have foreseen the precise form of the injury or the particular manner in which it occurred where such person should have foreseen that some injury would probably occur. Cumberland Tel. Tel. Co. v. Woodham, supra; Gulf Refining Co. v. Brown, 196 Miss. 131, 16 So.2d 765; Kessler v. West Missouri Power, 283 S.W. 705; Magers v. Okolona H. C.C.R. Co. 174 Miss. 860, 165 So. 416; Mares v. New Mexico Public Service (N.M.), 82 P.2d 257; Mississippi P. L. Co. v. Goosby, supra; Planters Wholesale Grocery v. Kincade, 210 Miss. 712, 50 So.2d 578; Public Service Corp. v. Watts, 168 Miss. 235, 150 So. 192; Roberts v. Mississippi P. L. Co., 193 Miss. 627, 10 So.2d 542; Southern Pine Electric Power Assn. v. Denson, supra; Southwest L. P. Co. v. Fowler (Okla.), 249 P. 961; Tri-State Transit Co. v. Martin, 181 Miss. 388, 179 So. 349.
D. Appellant is not relieved of liability for damages resulting from his negligence in allowing a live wire to fall under the doctrine of assumption of risk by appellees. Bowling Green Gaslight Co. v. Dean's Exrx. (Ky.), 134 S.W. 115; 4-County Electric Power Assn. v. Clardy, supra; Freedman v. Hurwitz (Conn.), 164 A. 647; Harris v. Gulf Refining Co. (Miss.), 240 F.2d 249; Lunsford v. Tucson Aviation Corp. (Ariz.), 240 P.2d 545; McDonald v. Wilmut Gas Oil Co., 180 Miss. 350, 176 So. 395; Mainfort v. Giannestras (Ohio), 111 N.E.2d 692; Mississippi P. L. Co. v. Goosby, supra; Peoples Drug Stores v. Windham (Md.), 12 A.2d 532; Rogers v. Los Angeles Transit Line (Cal.), 289 P.2d 226; Runnels Dixie-Drive-it-Yourself, 220 Miss. 678, 71 So.2d 453; Saxton v. Rose, 201 Miss. 814, 29 So.2d 646; Standard Oil Co. of Ky. v. Evans, 154 Miss. 475, 122 So. 735; Strand Enterprises v. Turner, 223 Miss. 588, 78 So.2d 769; Wallace v. J.C. Penny Co., Inc., 236 Miss. 367, 109 So.2d 876; 65 C.J.S., Sec. 174 p. 848.
E. Appellant cannot be relieved of liability for its negligence under the theory that the company furnishing electricity is not liable for injuries resulting from defective condition of wiring or appliances owned by the occupant. Alabama Power v. Farr (Ala.), 108 So. 373; Gilbert v. Duluth General Electric Co. (Minn.), 100 N.W. 653; City of Thomasville v. Jones (Ga.), 87 S.E. 923; Union Light Co. v. Arnston, 157 Fed. 540; Wheeler v. Northern Ohio Traction Co., 6 Ohio CCNS 406, 27 Ohio CC 517; 18 Am. Jur. Sec. 102; 29 C.J.S. 611.
II. There was no relationship between appellant and appellees which would relieve appellant of its negligence in allowing a live wire to drop in close proximity to appellees' property and thereby release a deadly current out of its usual zone of travel.
A. Appellant was not relieved of liability under the circumstances here under any theory of a landlord-tenant relationship. Burke v. Zatoonian (Mass.), 36 N.E.2d 385; Causey v. Norwood, 170 Miss. 874, 156 So. 592; Dicker v. Rossin (N.Y.), 136 N.Y.S. 50; Ghens v. Bush (Ky.), 80 S.W.2d 581; Gobrecht v. Beckwith (N.H.), 135 A. 20; Hiller v. Wiley, 192 Miss. 488, 6 So.2d 317; Indianapolis etc. Co. v. Temperly (Ind.), 64 N.W. 906; McColl v. Cameron (Minn.), 148 N.W. 108; Marsh v. Riley (W. Va.), 188 S.E. 748; Primus v. Valeview Apts. (Iowa), 44 N.W.2d 347; Staten v. Famularo (Colo.), 253 P. 1066; Tincus v. Schlechter, 153 N.Y.S. 67; Turnipseed v. McGee, 236 Miss. 159, 109 So.2d 551; 32 Am. Jur., Secs. 688, 744, 746; 52 C.J.S. 85.
B. One who is handling and controlling the dangerous instrumentality of electricity is not within the rule limiting his liability to willful and wanton negligence in the case of a gratuitous licensee, but on the other hand remains under the duty of exercising a high degree of care towards licensees lawfully on the property if he knew of their presence or should have anticipated their presence. Baker Utilities v. Haney (Okla.), 218 P.2d 621; Clark v. Longview Public Service Co. (Wash.), 255 P. 380; Cornucopaia Gold Mines v. Locken, 150 F.2d 75; Davoust v. Alameda (Cal.), 84 P. 760; Farmers' Gin Co. v. Leach, supra; Florida P. L. Co. v. Bridgeman (Fla.), 182 So. 910; Guinn v. Delaware etc. Tel. Co. (N.J.), 62 A. 412, 3 L.R.A. (N.S.) 988; Hall v. Rural Electric Co-op. (Ohio), 148 N.E.2d 232; Henry v. Mississippi P. L. Co., supra; Houston Lighting Power Co. v. Brooks (Texas), 319 S.W.2d 427; Keith v. Payne, 150 N.Y.S. 37; Monroe v. San Joaquin L. P. Corp. (Cal.), 109 P.2d 720; Newark Electric L. P. v. Garden, 78 Fed. 74, 41 L.Ed. 1188; Public Service Co. v. Elliott, 123 F.2d 2; Roberts v. Mississippi P. L. Co., supra; Sughrine v. Booth (Mass.), 121 N.E. 432; Terre Haute I. E. Traction Co. v. Sanders (Ind.), 136 N.E. 54; Texas-Louisiana Power Co. v. Webster (Texas), 91 S.W.2d 302; Thompson v. Tilton Electric L. P. Co. (N.H.), 88 A. 216; 29 C.J.S. 586; 65 C.J.S. 502.
The appellees recovered judgment against appellant in the amount of $15,925 for damages to the Ruleville Lumber Company because of a fire which occurred on January 13, 1958. It was charged and proved that the Power Company was operating a high voltage electric line in proximity to the plant of the Ruleville Lumber Company without a proper circuit breaker or fuse which would cut off the electricity from said lines when the same came in contact with each other or with the property of the appellees.
The last witness who testified in the case was a consulting electrical engineer for over thirty years and who admitted that if three weeks prior to the electrical disturbance and fire on the night of January 13th two wires in the vicinity of the one that fell on the night of the 13th became crossed and fused and had to be separated with a "hot stick" (which was proved definitely by other witnesses) would indicate that there was some defect in the construction or maintenance of that line to cause the occurrence to take place, and that when the two lines came together and were at least temporarily fused by the strength of the current that probably damaged one or both of the lines by pitting, and it would not have been a good electrical practice to tighten one of those lines without an inspection to see to what extent it was damaged or pitted without replacing the line or inspecting to see the extent of the damage.
In the case of Temple v. McComb Electric Light and Power Company, 89 Miss. 1, 42 So. 874, Judge Whitfield laid down the law of Mississippi, as follows: "The corporations handling the dangerous agency of electricity are bound, and justly bound, to the very highest measure of skill and care in dealing with these deadly agencies. The appellee had the right to such reasonable use of the streets for its poles and wires as the conditions existing at the time in the community warranted. On the other hand, the appellant had the reciprocal right to what was a reasonable use of the streets on his part. The rights of the appellant and the appellee are mutual and reciprocal. Neither could so use his own rights as to wantonly injure the other. These two correlative rights, if the law is obeyed, operate in perfect harmony with each other. There are no interferences, and no vacancies in the sphere of their harmonious movement."
In the case of the Mississippi Power Company v. Thomas, 162 Miss. 734, 140 So. 227, Judge Griffith, speaking for the Court, said: "But in the case at bar the evidence discloses without serious dispute that the offending wire had been in a dangerously low position for a period of at least one week, and this over a frequently traveled public highway within the corporate limits of the town. Much of the evidence is to the effect that the dangerous condition had existed for ten days or two weeks. Taking, however, the shorter period of time first mentioned, that is to say, one week, we do not hesitate to say that, as a matter of law, this was a period of time sufficient to charge the company with constructive knowledge. To hold otherwise would be either to deny the duty of inspection, or else to say that the periods thereof could be so far apart as to be of little practical value."
(Hn 2) Negligence of the Power Company was proved without question in this case, and the jury was abundantly warranted in finding as it did. Hence the judgment of the circuit court must be, and it is, hereby affirmed.
Affirmed.
Lee, Kyle, Holmes and McElroy, JJ., concur.