Opinion
March 10, 1955 —
April 5, 1955.
APPEAL from an order of the circuit court for Sauk county: BRUCE F. BEILFUSS, Circuit judge. Affirmed.
For the appellant there was a brief by Maloney Wheeler of Madison, and oral argument by Norris E. Maloney.
For the respondent there was a brief by Seering Newcomb of Reedsburg, and oral argument by Paul M. Newcomb.
Action by plaintiff John W. Snyder against defendant Oakdale Co-operative Electrical Association for damages arising out of plaintiff's loss of his farmhouse by fire. Defendant moved for summary judgment and from an order denying the motion defendant appeals.
The following facts are disclosed by the pleadings and the affidavits in support thereof:
Plaintiff was the owner of a farm in Sauk county. In 1945 he had the buildings thereon wired for electricity and requested the defendant for service. The wiring was done by Leonard Reimer, Sr. On October 24, 1945, in compliance with sec. 167.16, Stats., Reimer filed an affidavit with the defendant stating that the said wiring complied with the Wisconsin electrical code.
E. L. Lyddy, an electrical inspector certified by the industrial commission, examined plaintiff's premises and made a written report on August 21, 1946, stating:
"Notice of Defects
"1. Meter loop on barn to be installed by electrician.
"2. One light at least in barn and probably one or two in house have been damaged apparently by lightnings."
Copies thereof were received by plaintiff and defendant. Plaintiff sent his copy to Reimer with instructions to make the necessary corrections. On September 4, 1946, plaintiff again made written request of the defendant for service.
On August 25, 1947, before making the connection of service, defendant's employees examined the Snyder file and found the requests for service, the affidavit of wiring, and the notice of defects. On arriving at the farm they found that the meter loop had been installed and assumed that the other defects had also been corrected. They then made the necessary hookup with the defendant's lines.
On September 1, 1947, the fire occurred and plaintiff claims it was caused by defective wiring or fixtures and that defendant had knowledge of said defects when it energized the wiring system. Defendant contends that it has no liability under the undisputed facts.
The rule is well established that a company furnishing electric power for use in a private wiring system is not under obligation to inspect such system before supplying the current nor is it obligated to respond in damages for injuries sustained by reason of the defective condition of such system "unless it supplies current actually knowing of these conditions and the current is the cause of the injuries sued for, in which case it is the energizing of the line with knowledge of the conditions and not the conditions themselves which forms the basis of liability." Oesterreich v. Claas (1941), 237 Wis. 343, 349, 295 N.W. 766, 134 A.L.R. 499; 18 Am. Jur., Electricity, p. 498, sec. 102; 29 C.J.S., Electricity, P. 611 et seq., sec. 57.
Defendant's liability depends upon whether it had actual knowledge of a probable defect in the wiring system. Lyddy's notice of defects was filed with the company in August of 1946, sometime after Reimer's original affidavit of wiring. Could defendant rely on the affidavit and proceed with the hookup disregarding the notice of defects? Would it not be reasonable to conclude that the notice of defects which was still in the file in August, 1947, was sufficient notice that a possible defect still existed? Defendant's employees were aware of the notice before they went out to hook up the power. When they found that one of the defects had been corrected were they justified in assuming that the others had also been taken care of ? Whether, under all the circumstances, their acts constituted negligence is a question of fact for a jury.
It is true that the plaintiff, who owned and controlled the wiring system and whose duty it was to maintain it in a safe condition, had received the same notice of defects in 1946. The fact that he instructed Reimer to remedy the situation but apparently neglected to ascertain whether the defects had in fact been corrected before he reapplied to the defendant for power, presents a jury question as to negligence on his part. As stated by the trial court:
"This act upon the part of Snyder may well constitute contributory negligence, especially in view of the rule that it was his obligation to provide safe facilities. It is further possible that his contributory negligence might be sufficiently great so as to prevent a recovery under our comparative-negligence law. The court cannot conclude as a matter of law that his negligence was greater than that of Oakdale under the facts as they now appear upon this motion. The question of comparison of negligence, if such arises under the given facts, must be determined by the jury."
In our opinion the pleadings present issues of fact as to the possible negligence of both parties to the action and we have many times held that such a case is not a proper one for summary judgment. Holzschuh v. Webster (1945), 246 Wis. 423, 17 N.W.2d 553; McKenzie v. Clear Lake Union F. H. S. Dist. (1948), 252 Wis. 327, 31 N.W.2d 526, and cases cited therein.
By the Court. — Order affirmed.