Blue Ridge Rural Electric Cooperative v. Byrd

• Decision Date: 30 December 1958
• Docket Number: No. 7183.,7183.
• Parties: BLUE RIDGE RURAL ELECTRIC COOPERATIVE, Inc., Appellant, v. James Earl BYRD, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

264 F.2d 689 (1958)

BLUE RIDGE RURAL ELECTRIC COOPERATIVE, Inc., Appellant, v. James Earl BYRD, Appellee.

No. 7183.

United States Court of Appeals Fourth Circuit.

Argued October 24, 1958.

Decided December 30, 1958.

On Rehearing March 9, 1959.

Ray R. Williams and Wesley M. Walker, Greenville, S. C. (Leatherwood, Walker, Todd & Mann, and Williams & Henry, Greenville, S. C. on brief), for appellant.

Henry Hammer and Henry H. Edens, Columbia, S. C. (William E. Chandler, Jr., Columbia, S. C. on brief), for appellee.

Before SOBELOFF, Chief Judge, SOPER, Circuit Judge, and BRYAN, District Judge.

SOPER, Circuit Judge.

On the first appeal in this case, Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 4 Cir., 215 F.2d 542, we held that the Cooperative was not a charitable organization free from liability for torts of its agents and remanded the case for trial on its merits. The trial resulted in a judgment of $126,786.80 in favor of Byrd, who lost both forearms when he accidentally came in contact with a live wire while on a construction project extending the Blue Ridge system in South Carolina. Blue Ridge appealed and we reversed the judgment and directed the entry of the judgment for the defendant. 4 Cir., 238 F.2d 346. Our decision was based on the holding that Blue Ridge had complied with the Workmen's Compensation statute of South Carolina and that Byrd's remedy was confined to compensation under that act. The Supreme Court granted certiorari, 352 U.S. 999, 77 S.Ct. 557, 1 L.Ed.2d 544, and after reargument, 355 U.S. 950, 78 S.Ct. 530, 2 L.Ed.2d 527, reversed our decision, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953, on the ground that the facts had not been sufficiently developed in the District Court and remanded the case for further proceedings. The facts necessary to an understanding of the situation may be summarized as follows.

Byrd was an employee of R. H. Bouligny, Inc., a construction company which was doing certain construction work under contract for Blue Ridge, and the accident happened when he was instructed by a foreman of Bouligny to do some work upon a line which, through a mistake of another foreman of Bouligny, had been improperly energized. Bouligny had complied with and was operating under the Workmen's Compensation Act of South Carolina, Title 72 of the South Carolina Code of 1952. After the accident Byrd claimed and was paid full benefits under the statute by Bouligny. He then brought the present suit against Blue Ridge, claiming that the accident was due in part to its negligence. Blue Ridge had also complied with the compensation statute, which provides in § 72-111 that when an owner contracts with any other person for the execution of any work which is a part of the owner's trade or business, the owner shall be liable to pay to any workman employed in the work any compensation under the statute which he would have been liable to pay if the workman had been his immediate employee. Rights and remedies granted by the statute to an employee are exclusive of all other rights and remedies.

Blue Ridge defended the suit on the grounds that the accident was not due to its negligence but to the negligence of Bouligny and the contributory negligence of Byrd, and that even if Blue Ridge was was negligent the plaintiff's only remedy was afforded by the compensation act since the work being done was part of the business of the Cooperative. The District Judge held that this defense was based on a wrong interpretation of the statute and submitted the questions of negligence and contributory negligence to the jury with the result stated above. In reversing the judgment, we did not pass on the sufficiency of the evidence to show negligence on the part of the Cooperative, but held that it was exempt from liability because of its compliance with the Compensation Act.

The Supreme Court accepted our interpretation of the statute, and did so the more readily since neither party disputed it in that Court, but the Court reached the conclusion that the plaintiff had not had an opportunity in the District Court to present evidence as to whether Blue Ridge was in fact his statutory employer and that on this issue he was entitled to a jury trial in the Federal court, notwithstanding State decisions to the contrary. Accordingly, the case was remanded to this court for decision of the undecided questions with instructions that, if not made unnecessary by the decision of such questions, the case should be remanded to the District Court for a new trial on such issues as we might direct.

We consider first the plaintiff's contention that the accident was due in part to the negligence of one Ira Moss, a lineman in the employ of Blue Ridge, who energized the line with which the plaintiff came in contact under the following circumstances. The contract called for the construction by Bouligny of 24.19 miles of new lines, two substations and a breaker station, and also the change or conversion of 87.69 miles of old lines. The service to the consumers on the old conversion lines was necessarily interrupted from time to time during the construction work, and the contract set out the procedure to be followed so as to minimize the interruption of the service and at the same time guard the safety of all concerned. Bouligny agreed to plan the work on the existing lines so that they might be de-energized during certain periods of the day and safely re-energized at the expiration of these periods. It was agreed that prior to the commencement of the work each day, Bouligny would notify Blue Ridge in writing of the lines to be de-energized and thereupon Blue Ridge would de-energize them, and that upon completion of the work each day Bouligny would notify the owner in writing, or in such other way as the circumstances would permit, and designate the lines to be re-energized and upon receipt of the notice the owner would re-energize them. Ira Moss, a lineman employed by Blue Ridge, was designated by it to de-energize and re-energize the lines in accordance with this program.

Bouligny also agreed to provide constant supervision of the work by a competent superintendent, present at all times during working hours, and to employ capable and experienced foremen and skilled workmen for the work to be performed, and also to take all reasonable precaution for the safety of employees on the work and the safety of the public. Bouligny also agreed that at no time and under no circumstances should any of his employees be caused or permitted to work upon energized lines or upon poles carrying energized lines unless otherwise specified in the instructions to the bidders. During the period of construction Bouligny was given possession, management and control of the project and became liable for the upkeep of the project and for any damages which might result from his negligence or from acts of God or from any other cause.

The accident happened on a conversion line which was connected with a transmission line on a public highway and ran thence at right angles to the highway to furnish electric energy to an area known as the Ebenezer Community. Under the contract a portion of this line as it approached the highway was relocated so that upon completion of the work it would run to and receive electric energy from a new substation, known as the Walhalla Substation, which was being constructed by Bouligny on the highway at a point 1250 feet distant from the highway end of the Ebenezer line. During the course of the work Bouligny's workmen installed an insulator on the outside of the substation and ran a line from it to a pole 75 feet away and continued the line from the pole to the Ebenezer line at a point two or three spans from the old connecting point on the highway. On the way, this line crossed a tap line which served the Ebenezer Community.

The contractor intended that the new portion of the Ebenezer line running from the substation to the pole 75 feet away should not be energized until the substation was completed, and this was to be accomplished by leaving a disconnect on the pole. By an unfortunate mistake of a foreman of Bouligny a permanent jumper or union was installed on the pole so that when the Ebenezer line was energized the current did not stop at the pole but ran through the jumper on the pole to the insulator at the substation.

This was the situation on Friday, ...