Community Public Service Co. v. Dugger

• Decision Date: 02 July 1968
• Docket Number: No. 7887,7887
• Parties: COMMUNITY PUBLIC SERVICE COMPANY, Appellant, v. Raymond D. DUGGER, Appellee. . Texarkana
• Court: Texas Court of Appeals

Page 713

430 S.W.2d 713

COMMUNITY PUBLIC SERVICE COMPANY, Appellant, v. Raymond D. DUGGER, Appellee.

No. 7887.

Court of Civil Appeals of Texas.

Texarkana.

July 2, 1968.

Rehearing Denied Aug. 6, 1968.

James E. Henderson, Henderson, Bryant & Wolfe, Sherman, Pat C. Beadle, Clarksville, for appellant.

Jim D. Lovett, Lovett & Fowler, Clarksville, Rafaelli, Lee & Hawkins, Taxarkana, for appellee.

FANNING, Justice.

A venue case. Appellee, Raymond D Dugger, in the District Court of Red River County, Texas, sued appellant, Community Public Service Company, a Texas Corporation, to recover damages for destruction of a barn and other buildings and contents thereof by fire allegedly proximately caused by the negligence of appellant's employees occurring in Red River County, Texas.

Appellant filed its plea of privilege to be sued in Tarrant County, Texas, the county of its residence. Appellee duly controverted the plea seeking to maintain venue in Red River County under Subsections 9a and 23 of Art. 1995, Vernon's Ann.Tex.Civ.St.

After hearing the evidence adduced, the trial court overruled the plea of privilege. Appellant has appealed.

The trial court overruled appellant's plea of privilege without making findings of fact or conclusions of law which is proper. Rule 385(e), Texas Rules of Civil Procedure.

Where a case is tried without a jury, and no findings of fact or conclusions of law are filed by the trial judge, the judgment should be affirmed if there is sufficient evidence to support it upon any lawful theory, and every issue sufficiently raised by the testimony must be resolved in support of the judgment. 3--B, Tex.Jur., Sec. 873, p. 278; John F. Buckner & Sons v. Allen, Tex.Civ.App., 272 S.W.2d 929, wr. dism.

Plaintiff-appellee in his pleadings alleged to the effect that on or about June 16, 1967, plaintiff's barn and other property described, located in the Fulbright Community in Red River County, Texas, was destroyed by fire which was proximately caused by the negligence of defendant electrical transmission corporation, its servants, agents and employees; that defendant's electrical transmission system served plaintiff's premises in the Fulbright Community in Red River County; that defendant, a corporation, maintained an agent or representative who conducted the business of defendant from an office in Bogata, Red River County, Texas; that following a thunderstorm in the Fulbright area on June 16, 1967, the defendant dispatched Birchfield, Ward and Mankins, its agents, servants and employees, to repair and restore electrical service to plaintiff's property and the area surrounding it; that defendant's agents, servants and employees discovered that the transformer which served plaintiff's property was not operating because of a blown fuse; that such employees replaced the fuse, but the transformer blew it out again and that then such employees, totally disregarding the danger involved, placed another fuse in the transformer and forced the door of the fuse box into position even though it was arcing electricity and had made a popping noise; that immediately thereafter, the plaintiff's barn, which was connected to the electrical service from said transformer, erupted into fire and was totally destroyed, together with its contents and other property nearby; that defendant, its agents servants or employees were negligent in the following particulars:

'1. In not checking for a short circuit in the electrical wiring on Plaintiff's property before replacing the fuse the first time.

2. In not checking for a short circuit in the electrical wiring on Plaintiff's property before replacing the fuse the second time.

3. In forcing the door of the fuse box shut while electricity was arcing around inside the fuse box.

4. In failing to check the Plaintiff's electrical wiring for a short circuit after the fuse box had made a 'popping' noise.

Each of the above were a proximate cause of the damages to the Plaintiff's property.'

Plaintiff offered both direct and circumstantial evidence with respect to the negligence charged against defendant. Plaintiff's proof with respect to the issues of proximate cause was circumstantial. Of course the issues of both negligence and proximate cause may be proved by circumstantial evidence. Henderson et al. v. Willmon, Tex.Civ.App., 407 S.W.2d 24, wr. dism.

Appellant, among other contentions, contends to the effect that there was 'no evidence' and alternatively that there was 'insufficient evidence' to support the trial court's implied findings of negligence and proximate cause in support of the order overruling appellant's plea of privilege.

With respect to the 'no evidence' questions, viewing the evidence most favorably in support of the judgment, as we must, there was evidence of probative force to the following effect: On June 16, 1967, appellant (a corporation, with a legal agent in Red River County, Texas) sent some of its employees to the Fulbright Community in Red River County, Texas, to repair electrical equipment that had been damaged. The employees discovered that a transformer fuse on one of appellant's service poles had been blown out and that the electrical service from that transformer was off at the time. Four customers, one of which was plaintiff Dugger, were served by this transformer. The pole where the transformer had blown a fuse was located 50 to 75 feet from plaintiff Dugger's barn and Dugger's electrical service was connected to that pole. Appellant's employees removed the blown fuse and replaced it with another fuse which immediately blew out and produced a popping noise which according to one of appellant's employees indicated that a short circuit existed. One of appellant's employees then climbed the service pole and disconnected the electrical lines from the customers' premises to the transformer in order to determine whether a short circuit existed in the transformer itself. No short circuit was found in the transformer and it was working correctly so the customer-line wires were re-attached to the transformer and a second replacement fuse was attempted to be put in place and this attempt caused electricity to are and jump around inside the fuse box and next appellant's employee who had climbed the pole then forced the door of the fuse box shut. Next within a matter of minutes, and while appellant's employee was still on the electrical service pole, a fire broke out inside Mr. Dugger's barn and spread rapidly over the entire barn area and the barn and other buildings and contents were burned. Appellant's employees testified that no lightning was popping or striking in the area of Mr. Dugger's barn during any of the time that they were working there.

It was also undisputed that Mr. Dugger's electrical meter was located on the pole that appellant's employees were working on, And that Birchfield, defendant's employee in charge of the operation and work in question, had actual knowledge that Mr. Dugger's barn had no fuse protection from electrical short circuits. Also as hereinafter related in more detail appellee introduced in evidence a burned out wire which indicated he had a short circuit in his line.

The law exacts a duty from those who handle electricity to protect those who come in proximity therewith, and this duty is proportionate to and commensurate with the dangers involved. Texas Power & Light Co. v. Holder, Tex.Civ.App., 385 S.W.2d 873, wr. ref., n.r.e.

Negligence on the part of an electric company consists in a breach of the duty to exercise reasonable care and diligence in preventing injuries to persons or property. An electric company's negligence, independent of statute, may consist of either an act or omission, and whether a given state of facts constitutes negligence depends upon what a reasonably prudent person would have done under the existing circumstances. In this connection see 21 Tex.Jur.2d 497--9 and authorities cited therein.

We think that under this record there was evidence of probative force to show negligence on the part of defendant's employees. When appellant's employees replaced the blown fuse they found on arrival it also blew out immediately and they testified that this indicated to them that a short circuit existed. Thereafter, they tested defendant's transformer and determined that no short circuit existed therein. However, even with the knowledge that a short circuit existed in the line somewhere, the appellant's employees did not attach each of the four customer's lines separately to the transformer to locate short circuits in customers' lines. Instead of taking this precautionary measure and checking or inspecting the four customers' lines attached to the transformer, appellant's employees simply installed a second replacement fuse and forced the door of the fuse box shut while electricity was arcing in the fuse box itself which reenergized the lines to Mr. Dugger's barn. Appellant's employees knew the dangers inherent in an electrical short circuit and yet with knowledge of a short circuit being in one or more of the customers' lines And having actual knowledge that Mr. Dugger's barn had no fuse protection from a short circuit, appellant's employees, we think carelessly and negligently re-energized Mr. Dugger's line with electricity. We think that if appellant's employees had been reasonably prudent under such circumstances, with the knowledge they then had of the situation, that they would have located the short circuit and would at least have advised the person on whose line the short...