City of Maryville v. Farmer

• Decision Date: 22 May 1957
• Docket Number: No. 12808-12811.,12808-12811.
• Parties: CITY OF MARYVILLE, Maryville Electric System, and Maryville Board of Public Utilities, Defendants-Appellants, v. Pearl FARMER, Administratrix of the Estate of Joseph Howard Hammontree, deceased, Plaintiff-Appellee. Pearl FARMER, Administratrix of the Estate of Joseph Howard Hammontree, deceased, Plaintiff-Cross Appellant, v. CITY OF MARYVILLE, Maryville Electric System and Maryville Board of Public Utilities, Defendants-Cross Appellees. CITY OF MARYVILLE, Maryville Electric System, and Maryville Board of Public Utilities, Defendants-Appellants, v. Mildred Gibson HAMMONTREE, Widow of Owen Franklin Hammontree, deceased, Plaintiff-Appellee. Mildred Gibson HAMMONTREE, Widow of Owen Franklin Hammontree, deceased, Plaintiff-Cross Appellant, v. CITY OF MARYVILLE, Maryville Electric System, and Maryville Board of Public Utilities, Defendants-Cross Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

244 F.2d 456 (1957)

CITY OF MARYVILLE, Maryville Electric System, and Maryville Board of Public Utilities, Defendants-Appellants, v. Pearl FARMER, Administratrix of the Estate of Joseph Howard Hammontree, deceased, Plaintiff-Appellee.

Pearl FARMER, Administratrix of the Estate of Joseph Howard Hammontree, deceased, Plaintiff-Cross Appellant, v. CITY OF MARYVILLE, Maryville Electric System and Maryville Board of Public Utilities, Defendants-Cross Appellees.

CITY OF MARYVILLE, Maryville Electric System, and Maryville Board of Public Utilities, Defendants-Appellants, v. Mildred Gibson HAMMONTREE, Widow of Owen Franklin Hammontree, deceased, Plaintiff-Appellee.

Mildred Gibson HAMMONTREE, Widow of Owen Franklin Hammontree, deceased, Plaintiff-Cross Appellant, v. CITY OF MARYVILLE, Maryville Electric System, and Maryville Board of Public Utilities, Defendants-Cross Appellees.

Nos. 12808-12811.

United States Court of Appeals Sixth Circuit.

May 22, 1957.

J. C. Gamble, Maryville, Tenn. (M. H. Gamble, Jr., Arthur B. Goddard, of Goddard & Gamble, Maryville, Tenn., and Hugh E. Delozier, Maryville, Tenn., on the brief), for City of Maryville, and others.

J. H. Doughty, Knoxville, Tenn. (Hodges & Doughty, Knoxville, Tenn., and Charles S. Mayfield, Cleveland, Tenn., on the brief), for Pearl Farmer, Administratrix, and Mildred G. Hammontree.

Before SIMONS, Chief Judge, and MARTIN and McALLISTER, Circuit Judges.

PER CURIAM.

In the United States District Court, the plaintiffs, Pearl Farmer (suing in her capacity as administratrix) and Mildred Gibson Hammontree (suing as widow), were awarded jury verdicts for the deaths by wrongful act of their respective decedents. Jury awards were in amounts of $33,000 for the death of Joseph Howard Hammontree and $29,000 for the death of Owen Franklin Hammontree. The cases were consolidated for trial and by stipulation have been heard together on this appeal. The defendants made timely motions for directed verdicts, both at the conclusion of the plaintiffs' proof and at the conclusion of all the evidence in the case. These motions and later motions for judgments non obstante veredicto were overruled by the district judge. The single issue for decision on this appeal is whether there is substantial evidence to support the verdicts of the jury. Throughout these proceedings, appellants for all practical purposes properly may be and have been treated as the same person.

The appellants (defendants) are engaged in the distribution of electrical power purchased from the Tennessee Valley Authority in the Maryville, Tennessee, area. They own, operate and maintain a system of transmission lines from which customers are served. The Tennessee Farmers Co-operative Fertilizer Plant, where the plaintiffs' decedents were employed and where they lost their lives by electrocution, was one of the customers of the utility. The Liberty Mutual Insurance Company, carrier of the workmen's compensation on the employees of the fertilizer plant, has made settlement for the two deaths. These actions were brought for the benefit of that insurance company and of all others who, under Tennessee law, are entitled to participate in the recoveries.

Upon the trial, development of the facts was necessarily a difficult task, most of the witnesses being experts whose technical testimony and opinions were couched in the language of electrical engineers. The briefs and oral argument here and the entire record of the proceedings in the district court have been carefully considered, with the result that we find no inconsistency in the material testimony of the witnesses after assumptions have been separated from factual evidence.

There is no dispute as to the extent of the physical equipment owned and maintained by the appellants. Their transmission lines are connected into the T. V. A. system at a sub-station where 13,200 nominal volts are received. At various points along this line, energy is tapped off for distribution. In close proximity to the fertilizer plant where the accident occurred, appellants own transformers which step down the 13,200 nominal volts to a more usable potential of 440 volts. From the secondary connections of these transformers the plant's "delta-delta ungrounded three-phase" electrical system is supplied. Another transformer steps down the 440 volts to a single-phase energy at 110 volts for lighting purposes. Appellants' wires are connected to those of the plant outside the building at the "weather head." Beyond the weather head, the wiring is owned and maintained by the consumer and the utility has no jurisdiction.

The appellants' hypothesis is that the electrocution was caused ultimately by faulty insulation on certain Kerney connectors located within the fertilizer plant's wiring system over which appellants had no authority. It is contended further that the failure of the consumer to supply an independent ground wire for the portable rubber-tired electric conveyor, which became charged with electricity while the decedents were in the act of turning it around, was a primary contributing factor to their deaths; and that such a ground wire in all likelihood would have prevented the accident by causing a fuse to blow, or by providing a path of low resistance to ground. In summary, the hypothesis of the appellants is that the defective wiring which proximately caused the deaths of these men was that of the fertilizer plant and not that of appellants, whose wires terminated at the weather head of the plant building.

Appellees, in the capacity of cross-appellants, insist that the trial court was in error in ruling that the doctrine res ipsa loquitur has no application under these circumstances. The effect of that doctrine, if applied, would necessarily shift the burden of producing evidence to the appellants. It is well settled that the doctrine res ipsa loquitur has no application where the defendant is not in exclusive control of the instrumentality which caused the plaintiff's injuries. Coca-Cola v. Sullivan, 1942, 178 Tenn. 405, 158 S.W.2d 721, 171 A.L.R. 200; Susman v. Mid-South Fair, 1944, 180 Tenn. 471, 176 S. W.2d 804. Here, the appellant had no control of the wiring within the fertilizer plant. "It is the general rule that where a company merely transmits its electric current from its lines to the consumer wires, which it did not install and does not control, that the company has no duty to inspect such wires and is not liable for injury caused by defects in them." Dabbs v. Tennessee Valley Authority, 1952, 194 Tenn. 185, 250 S.W. 2d 67, 69. Appellants' hypothesis, which is supported by evidence, is that the accident resulted from defects in the wiring of the consumer. Under these circumstances, the ruling of the district court as to the res ipsa loquitur doctrine was correct. There being no merit in them, the cross-appeals are accordingly dismissed.

As background study, some of the technical testimony of the witnesses will be now summarized. The fertilizer plant was served by what is known as a 440 volt "delta-delta ungrounded three-phase" electrical system. Three-phase systems are commonly used for industrial power applications. Three wires, or "phases," supply the motors which operate the machinery. All three of the wires are "hot," and anyone coming in contact with any two of them simultaneously will be either shocked severely, or killed. This is especially true where higher potentials such as the 440 volts used in the fertilizer plant are involved, for the reason that the human body's normally high resistance to the passage of an electric current will be more easily overcome by higher voltages. One hundred and ten volts, or less, may cause death by electrocution under some conditions. It is well known that the ground is a good conductor of electricity, particularly where it is damp and covered with hydroscopic mineral matter as was the condition in the Farmers Co-operative plant at the time of the accident. It should be observed that the plant's circuit was described as an "ungrounded" system.

The testimony is to the effect that an ungrounded three-phase system under ordinary circumstances is not dangerous, and that a person standing upon the ground could touch any one naked wire of the system and experience nothing more than discomfort. The testimony is uncontradicted that two of the three wires serving the plant had become grounded, since two Kerney connectors in the switch room by some means had come in contact with the lid covering the metal trough in which they were located and had become "fused" into the cover, thus making excellent electrical contact with the ground. In this way, the ground had become a charged electrical conductor; and a person standing upon it could be electrocuted if he came in electrical contact with the third or ungrounded wire, as this would complete the circuit through such person's body. Thus, the ungrounded and comparatively safe circuits had become grounded and consequently were more dangerous.

It is apparent that the metal frame of the portable conveyor which the decedents were engaged in turning around at the time of their electrocution had come in electrical contact with live wiring; otherwise, the men would not have been electrocuted. The only evidence showing how that equipment could have become charged is the testimony of one of the witnesses for appellees to the effect that the insulation on the portable cable supplying its motor had burned, or "carbonized," within a switchbox, providing a path which could be followed by the current to the metal frame of the conveyor.

The Kerney connectors referred to are metal devices used to connect heavy-gauge electric wiring that cannot be twisted together and soldered in the usual manner. In the switch room of the plant, there was a large junction box or trough which housed some of the wiring. Within that box the line wires were joined by Kerney connectors to load circuits carrying energy to...