Carroway v. Carolina Power & Light Co.

• Decision Date: 18 November 1954
• Docket Number: No. 16932,16932
• Citation: 226 S.C. 237,84 S.E.2d 728
• Court: South Carolina Supreme Court
• Parties: , 7 P.U.R.3d 545 Roy CARROWAY, Respondent, v. CAROLINA POWER & LIGHT COMPANY, Appellant.

Page 728

84 S.E.2d 728

226 S.C. 237, 7 P.U.R.3d 545

Roy CARROWAY, Respondent, v. CAROLINA POWER & LIGHT COMPANY, Appellant.

No. 16932.

Supreme Court of South Carolina.

Nov. 18, 1954.

Willcox, Hardee, Houck & Palmer, Florence, for appellant.

McEachin, Townsend & Zeigler, Florence, for respondent.

OXNER, Justice.

This is an action to recover damages for unlawfully entering the premises of plaintiff and removing his electric meter, and for wilfully and wantonly discontinuing his electric service. Defendant denied committing a trespass and asserted that it was justified in removing the meter and cutting off the current because of the dangerous condition of the electrical wiring in plaintiff's residence. The trial resulted in a verdict in favor of the plaintiff for $200 actual damages and $275 punitive damages. From the judgment entered thereon, defendant has appealed on a number of exceptions, but we need only consider whether the trial Judge erred in refusing its motion for a directed verdict upon the ground that the undisputed evidence showed that defendant lawfully removed the meter and was justified in discontinuing the supply of electrical current to plaintiff's home.

On April 15, 1950, plaintiff, who then had just rented from M. Rosenfeld a house located at 602-B South Jarrott Street, in the City of Florence, applied to defendant for electric service, executing the usual service, agreement. Defendant promptly installed a meter and commenced supplying electricity to this house. There was no interruption of the service until July, 1952.

On Saturday, July 12, 1952, the wiring in another house owned by Rosenfeld and occupied by a tenant, which was next door to the one in which plaintiff lived, caught on fire. The Fire Department was called. The blaze was promptly extinguished and apparently little damage was done. On the following Monday morning, July 14th, the Chief of the Fire Department requested the Electrical Inspector for the City of Florence to go with him to the place of the fire and inspect the wiring in the houses in that vicinity. Around 11:00 o'clock that morning, the Electrical Inspector, accompanied by the Fire Chief, examined the wiring in plaintiff's residence and several other houses owned by Rosenfeld. He concluded that it was defective and constituted a fire hazard. On his way back to the City Hall about noon, he went by the office of Rosenfeld's property manager and discussed the situation. The record does not disclose what transpired between these parties as their conversation was excluded on motion of plaintiff's counsel. It is fair to assume, however, from the record that Rosenfeld's property manager was advised of the condition of the electrical wiring in these houses. Evidently the Electrical Inspector received no assurance that the condition would be immediately remedied, for upon arriving at City Hall, he promptly called defendant's assistant manager and told him to disconnect the electric current running into plaintiff's residence. Defendant's assistant manager requested that these instructions be put in writing. In accordance with this request, between 1:00 and 2:00 P.M., the Electrical Inspector wrote a letter to Rosenfeld in which he stated that 'at the request of the Chief of the Florence Fire Department', he had made an inspection of the houses owned by Rosenfeld at 602-A South Jarrott Street, 602-B South Jarrott Street, 604 South Jarrott Street and 500 Walnut Street, which disclosed 'that the electrical wiring in each building is in an extremely dangerous condition and that corrections must be made.' After pointing out the particulars in which the wiring was defective, he further stated that a copy of the letter was being sent to Carolina Power and Light Company, which would 'serve as their official notice to immediately discontinue service' at the houses on South Jarrott Street. He further advised Rosenfeld that the Carolina Power and Light Company would be notified to reinstate service to these houses 'upon satisfactory completion of the necessary correction', and, further, that unless corrections were made at the house on Walnut Street within fifteen days, the Carolina Power and Light Company would be notified to discontinue the service at this house.

This letter was promptly dispatched by a policeman to Rosenfeld and a copy delivered to defendant's assistant manager, who immediately ordered his service foreman to carry out the instructions. According to the latter's testimony, he went to plaintiff's residence about 3:00 o'clock that afternoon, and after explaining the situation, removed the meter and cut off the current. Plaintiff and his wife testified that this employee of defendant entered their premises without permission, and without previous notice removed the meter located at the corner of their house and disconnected the current. They stated that they told him that one of their children was sick and requested him 'to give us time to go see Mr. Rosenfeld and see what was the trouble,' but the service foreman refused to do so.

On Thursday, July 17, or three days after the current was cut off, defendant, upon being notified by the city authorities that the necessary repairs had been made, installed the meter and a new switch box in plaintiff's home and reconnected the current. While the cause of this delay in correcting the situation is not disclosed by the record, it could not be attributed to defendant or the municipal authorities because no duty rested upon either to make these repairs.

It is conceded that plaintiff was not in arrears with the payment of his electric bill at the time his service was disconnected. The sole question for determination is whether the defendant was justified in cutting off the service because of the dangerous condition of the wiring. Stated differently, under the circumstances mentioned, did the duty of the defendant to supply electricity to plaintiff's home end, and there then arise a higher duty to protect the property, safety and lives of the public? Defendant seeks principally to justify its conduct under an ordinance of the City of Florence and certain rules and regulations hereinafter discussed, but it might not be amiss to first review the duty and obligation of the defendant at common law.

We have had occasion to point out that 'electricity is a very dangerous thing', and that 'power companies and their employees, even more than all other people, ought to know the great danger of electricity.' Weeks v. Carolina Power & Light Co., 156 S.C. 158, 153 S.E. 119, 122. The degree of care must be commensurate with the danger involved. Since the electric wires in plaintiff's home were not owned or controlled by defendant, it was not charged with the duty of inspecting same to see that they were in a safe condition and kept so, and ordinarily could not be held liable for any damage sustained as a result of such defective wiring. 18 Am.Jur., Electricity, Sec. 102; 29 C.J.S., Electricity, § 57. If a consumer continues to use the current, knowing that a dangerous situation exists, he assumes the risk consequent upon his conduct. But where a public utility knows that the wiring in a customer's house is dangerous and continues to supply electricity to such home, it incurs liability for the consequences. Milligan v. Georgia Power Co., 68 Ga.App., 269, 22 S.E.2d 662; Hawkins v. Vermont Hydro-Electric Corp., 98 Vt. 176, 126 A. 517, 37 A.L.R. 1359; Oesterreich v. Claas, 237 Wis. 343, 295 N.W. 766, 768, 134 A.L.R. 499. Also, see annotation in 32 A.L.R.2d beginning on page 282. In such a 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, supra. In Null v. Electric Power Board of City of Nashville, 30 Tenn.App. 696, 210 S.W.2d 490, 492, the Court said that where such public utility knows of the defective condition, 'its duty is to stop and not to send its deadly current to the defective wiring of the consumer, and it is liable for injuries to person or property caused by breach of this duty.' The views herein discussed were succinctly summarized in Hoffman v. Leavenworth Light, Heat & Power Co., 91 Kan. 450, 138 P. 632, 636, 50 L.R.A.,N.S., 574, as follows:

'In order, therefore, to hold the seller liable, it must appear that it continued to furnish and turn on the dangerous current after knowing that the purchaser had permitted the equipment to become defective. From the time of acquiring such knowledge the seller's contract duty cannot be required save on condition that such defect be remedied, for otherwise it must thenceforward furnish a dangerous force, knowing that life and limb may be imperiled by reason of such defect, which neither a contract nor the law nor the common instincts of humanity could require of any one.'

Applying the foregoing principles, the Supreme Court of Alabama, in Alabama Power Company v. Sides, 229 Ala. 84, 155 So. 686, held that a power company was not liable in damages for discontinuing electrical service where the undisputed testimony showed that the wiring was defective.

Having discussed the duty of the defendant at common law, we now turn to the rules and regulations pertaining to the question before us.

Rule 1(g) of the 'Service Regulations', on file with and approved by the Public Service Commission, and in effect when plaintiff's service was disconnected, authorized the company to suspend the delivery of electricity to a customer, without notice, 'in case of a condition on Customer's side of the point of delivery actually known by Company to be, or which Company reasonably anticipates may be dangerous to life or property.' Under Rule 12 of these Service Regulations, the company reserved the right to suspend service,...