Barnett v. Virginia Public Service Co.

• Citation: 169 Va. 329
• Court: Supreme Court of Virginia
• Decision Date: 11 November 1937
• Parties: W. T. BARNETT v. VIRGINIA PUBLIC SERVICE COMPANY.

Page 329

169 Va. 329

W. T. BARNETT v. VIRGINIA PUBLIC SERVICE COMPANY.

Supreme Court of Virginia, Richmond.

November 11, 1937.

Present, All the Justices.

1. ELECTRICITY — Liability for Destruction of House by Fire — Agreement between Power Company and Property Owners as to Construction and Maintenance of Line — Circumstances Charging Plaintiff with Knowledge of Agreement — Case at Bar. — In the instant case, an action against an electric power company to recover for the destruction of plaintiff's dwelling by fire, defendant denied ownership or control of the electric line. Several years before the fire a group of property owners, including plaintiff's predecessor in title, agreed to, and did, construct, at their own expense, an electric line from the power company's transmission line to their several properties. This branch line was maintained wholly by the property owners, and immediately before and on the day of the fire repairs were being made, plaintiff personally assisting in a part of the work. Plaintiff contended that when he applied for a service connection to his dwelling defendant did not inform him that it did not own or control the line, but his evidence and actions indicated his knowledge of the agreement between the property owners and defendant company, and he admitted that he was informed of defendant's position a few months prior to the fire, when a transformer was put up for service to his home.

Held: That circumstances with which plaintiff must necessarily have been familiar charged him with knowledge of the agreement between the property owners and defendant company.

2. ELECTRICITY — Liability for Negligence — Where Power Company Does Not Own Line. — A power company is not responsible for any alleged negligence arising out of the construction of a power line to which it merely furnishes power, but which it does not own or control.

3. ELECTRICITY — Liability for Negligence — Owner of Line Cannot Shift Responsibility to Power Company. — If one is an owner of an electric line, charged with the responsibility of maintaining it, he can no more relieve himself of that responsibility, and place it upon a power company merely transmitting the electricity, than he can require it to repair an electric appliance or fixture in his house, owned and controlled by him.

4. ELECTRICITY — Liability for Negligence — Injury to One Whose Duty It Is to Maintain Line. — If a power company does not own or control the line over which electric current is transmitted, and is not charged with the duty of maintaining it, it cannot be held liable for an injury to one whose duty it is to maintain it, caused by the failure of the latter to perform his duty.

5. ELECTRICITY — Liability for Destruction of House by Fire — Burden of Proof — Case at Bar. — The instant case was an action against an electric power company to recover for the destruction of plaintiff's dwelling house by a fire which plaintiff contended was communicated from a tree ignited through coming in contact with an electric wire, due to the swaying of a rotten pole. No one was at home when the fire started and there was no direct or positive evidence as to the cause thereof. The fire apparently originated in the western end of the attic, that portion of the house most distant from the tree. It was plaintiff's theory that, due to the defective pole, a short circuit occurred when the electric line came into contact with the tree, causing a fire at that point, and that some burning part of the tree became detached and was blown into a dormer window in the roof and thence to the western end of the attic.

Held: That in order to recover, plaintiff must do more than merely prove that he had suffered a loss; he must prove a wrong, the cause thereof, and trace it to defendant; and it was incumbent upon him to show how and why the fire occurred — some fact or facts by which the cause could be determined by the jury, and not left entirely to conjecture, guess or random judgment.

6. ELECTRICITY — Liability for Destruction of House by Fire — Burden of Proof — Case at Bar. — The instant case was an action against an electric power company to recover for the destruction of plaintiff's dwelling house by a fire which plaintiff contended was communicated from a tree ignited through coming in contact with an electric wire, due to the swaying of a rotten pole. No one was at home when the fire started and there was no direct or positive evidence as to the cause thereof. The fire apparently originated in the western end of the attic, that portion of the house most distant from the tree. It was plaintiff's theory that, due to the defective pole, a short circuit occurred when the electric line came into contact with the tree, causing a fire at that point, and that some burning part of the tree became detached and was blown into a dormer window in the roof and thence to the western end of the attic.

Held: That the burden rested upon plaintiff to prove by a preponderance of the evidence that the fire was caused by some agency for which defendant was responsible, and it would not be sufficient for the evidence to show a possibility, or even a mere probability, that the fire was caused in the manner charged.

7. ELECTRICITY — Liability for Destruction of House by Fire — Circumstantial Evidence to Show Cause of Fire — Case at Bar. — The instant case was an action against an electric power company to recover for the destruction of plaintiff's dwelling house by a fire which plaintiff contended was communicated from a tree ignited through coming in contact with an electric wire, due to the swaying of a rotten pole. No one was at home when the fire started and there was no direct or positive evidence as to the cause thereof. The fire apparently originated in the western end of the attic, that portion of the house most distant from the tree. It was plaintiff's theory that, due to the defective pole, a short circuit occurred when the electric line came into contact with the tree, causing a fire at that point, and that some burning part of the tree became detached and was blown into a dormer window in the roof and thence to the western end of the attic.

Held: That proof of the cause of the fire might be furnished by circumstantial evidence.

8. ELECTRICITY — Liability for Destruction of House by Fire — Sufficiency of Evidence — Case at Bar. — The instant case was an action against an electric power company to recover for the destruction of plaintiff's dwelling house by a fire which plaintiff contended was communicated from a tree ignited through coming in contact with an electric wire, due to the swaying of a rotten pole. No one was at home when the fire started and there was no direct or positive evidence as to the cause thereof. The fire apparently originated in the western end of the attic, that portion of the house most distant from the tree. It was plaintiff's theory that, due to the defective pole, a short circuit occurred when the electric line came into contact with the tree, causing a fire at that point, and that some burning part of the tree became detached and was blown into a dormer window in the roof and thence to the western end of the attic. There was evidence that on previous occasions sparks had been observed arising from the contact of the electric line with the tree, but there was no evidence that sparks were emanating from the tree on the day of the fire, which was clear, calm and practically windless. The house was heated by a furnace and there was a fireplace in the living room, on the same side of the house as that in which the fire started, but the evidence for plaintiff was that there was no fire in the furnace on that day, and that, although there had been a fire in the fireplace, plaintiff had put it out and covered it with ashes before leaving the house.

Held: That plaintiff's theory was based upon a chain of presumptions or inferences, and there was not a single known fact, or fact which might be regarded as proved, to show how the fire originated. The fact that plaintiff furnished evidence that he left no cause for the fire within the house did not relieve him of the burden of showing how the fire occurred, for it was not defendant's duty to account for, or to explain the origin of the fire.

9. WITNESSES — Examination of Witnesses — Re-Examination — Refusal to Permit Re-Examination in Rebuttal within Discretion of Court — Case at Bar. — In the instant case, an action to recover for the destruction of plaintiff's dwelling house by fire, plaintiff contended that the trial court erred in refusing to permit the re-examination of plaintiff's wife as a witness in rebuttal. Plaintiff's wife was in ill health, and by agreement of counsel her deposition was taken and read to the jury. There were numerous other witnesses who might have been examined on the question concerning which it was desired to examine plaintiff's wife. The subject was in controversy early in the trial, and the evidence of plaintiff's wife would not have furnished any further light on the cause of the fire. No motion for a continuance on account of the illness of the witness was requested.

Held: That, under the existing circumstances, the trial court did not abuse its discretion in refusing to permit the re-examination of the witness.

10. ELECTRICITY — Liability for Destruction of House by Fire — Instructions — Harmless Error — Case at Bar. — In the instant case, an action against an electric power company to recover for the destruction of plaintiff's dwelling by a fire which plaintiff contended was communicated from a tree ignited through contact with an electric wire, due to the swaying of a rotten pole, plaintiff assigned as error the giving of an instruction for defendant that even though the jury believed that the fire was generated by the electric line coming in contact with the tree and even though they believed it was defendant's duty to so maintain the line as to prevent...