Fickeisen v. Wheeling Elec.Co

• Citation: 67 W. Va. 335,67 S.E. 788
• Court: Supreme Court of West Virginia
• Decision Date: 29 March 1910
• Parties: FICKEISEN v. WHEELING ELECTRICALCO.

67 S.E. 788

67 W. Va. 335

FICKEISEN

v.WHEELING ELECTRICALCO.

Supreme Court of Appeals of West Virginia.

March 29, 1910.

(Syllabus by the Court.)

1. Electricity (§ 17^*)—Liability op Seller of Electricity to Third Persons—Person Killed by Electricity After Delivery to Buyer.

The Wheeling Electrical Company sold electricity to the Bridgeport Electrical Company, to be used by the latter company in lighting the streets of Bridgeport, delivering the electricity from the wire of the Wheeling Company to the wire of the Bridgeport Company at a point where the wires of the two companies met. A wire of the Bridgeport Company conveying the electricity along a street was ground ed, and killed a person with its current. The Wheeling Company is not liable to an action for the death of such person.

[Ed. Note.—For other cases, see Electricity, Dec. Dig. § 17.*]

(Additional Syllabus by Editorial Staff.)

2. Sales (§ 10*) — "Personal Property" Which May be Subject to Sale.

Electricity is "personal property" capable of sale.

[Ed. Note.—For other cases, see Sales, Dec. Dig. § 10.*

For other definitions, see Words and Phrases, vol. 6, pp. 5346-5358; vol. 8, p. 7753.]

3. Executors and Administrators (J 12*)— Appointment — Jurisdiction of Court — Existence of Assets.

Where a company against which an estate had a claim for decedent's death had its habitat in the county, the demand against the company was property of decedent's estate, conferring jurisdiction on the county court of the county to appoint an administrator, though the death occurred in Ohio.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. § 24; Dec. Dig. § 12.*]

4. Electricity (§ 19*) — Pleading — Variance.

Where the declaration alleged that wires, one of which caused decedents death, were owned and controlled by the W. Company, which company was in fact liable for the death, while the proof was that they were owned and controlled by the B. Company, there was not a variance, but only failure of proof of matter material for recovery.

[Ed. Note.—For other cases, see Electricity, Dec. Dig. § 19.*]

Error to Circuit Court, Ohio County.

Action by A. G. Fickeisen, administrator of John P. Whitney, against the Wheeling Electrical Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded for a new trial.

John A. Howard and T. S. Riley, for plaintiff in error.

John J. Coniff and Geo. Duncan, for defendant in error.

BRANNON, J. John P. Whitney, while walking along Howard street in the city of Bridgeport, Ohio, came in contact with a live electric wire used for conveying electricity for lighting the streets, which fell from the crossbar on an electric light pole, and said Whitney was killed by the electric current, and his administrator, Algernon G. Fickeisen, brought an action against the Wheeling Electrical Company to recover damages for the death of Whitney, and recovered a verdict and judgment for $5,000 damages, and the electrical company appeals therefrom.

The Wheeling Electrical Company is a corporation operating an electric power plant in the city of Wheeling for the production of electricity for lighting streets and houses. The Bridgeport Electrical Company is a separate and distinct corporation whose works are located in the city of Bridgeport, supplying its streets and houses with electricity.

The wires which fell to the ground, from whose current of electricity Whitney was killed. belonged to the Bridgeport Company. That company owned the poles and wires supplying Bridgeport with electricity. No sale or lease appears. The Bridgeport Company had a "cut-off" at the end of the bridge for the purpose of cutting off the current from its wires. No corporate action to show that the Wheeling Company assumed control of the works of the Bridgeport Company.

The ruling question in this case is this: Which of these two companies is liable for the death of Whitney? It is incontestable, it is not contested, that the Wheeling Company's contract was to sell to the Bridgeport Company electricity to light the streets of Bridgeport. Nor is it contested that the line of the Bridgeport Company came to the Ohio end of the bridge, and the line of the Wheeling Company came from the West Virginia side of the river to the Ohio end of the bridge, and there connected with the wire of the Bridgeport Company, and that the one company held Bridgeport as its territory, and the other Wheeling, and that the contract was that the Wheeling Company was to deliver electricity to the Bridgeport Company at the Ohio end of the bridge on the wires of the Bridgeport Company. That was the point of delivery. Thus there was a sale of electricity by the Wheeling Company to the Bridgeport Company. Wherein does the sale of this electricity differ from a sale of other commodities or things? It is personal property capable of sale. Terrace Co. v. San Antonio Co., 1 Cal. App. 511, 82 Pac. 562. When, under the law of sales, the Wheeling Company delivered electricity into the wires of the Bridgeport Company at the bridge end, the title and possession of the Wheeling Company ceased, and the Bridgeport Company took title and possession then and there. When the electricity passed from the bridge into the streets of Bridgeport, it was the property of the Bridgeport Company. Surely, this is so, unless, as the circuit judge held, there is a difference between this mysterious thing, electricity, and other salable things. He thought that, the current being continuous from the wires of the one company to the wires of the other company, there was no specific point of delivery where we can say the right to the electricity of one company ended and that of the other began. But we must here apply some rule or principle, and why not the ordinary law of sales? I repeat that, when that electricity passed from the bridge end into the streets of Bridgeport, it was, through every foot of its course, the property of the Bridgeport Company. The Wheeling Company lost title; the Bridgeport Company acquired title then and there. Suppose that at the end of the bridge the Bridgeport Company had had a storage battery for storage of the electricity, and that the Wheeling Company had delivered the electricity into that storage battery, and the Bridgeport Company had taken it therefrom for lighting the streets, and that some one should be killed by the grounding of a defective wire of the Bridgeport Company? Would you say the Wheeling Company in that case would be liable? We think not. Though this mysterious agent, friendly, yet sometimes deadly to man, be unseen and unseeable, still it had substance so far as to be measured. A certain quantity measured by volts performs, under the law of some of the states, the deadly function of electrocution of the murderer. It is capable of measurement by the volt. In this case it was delivered in quantity known by one company to the other. When it reached the point where the unfortunate Whitney met his death, whose property was the electricity? So far as the human mind can realize, it was the property of the Bridgeport Company. It was there as an active, deadly agent, producing the death of Whitney, and that agent was the property and in the possession of the Bridgeport Company, because it was on its wires. So far as we can use the word "possession" as applied to electricity (and we can so use the word), it was in the possession of that company. Suppose one man sell to another a dangerous machine, and deliver it at a point, and afterwards it do harm to a third party; who would say that the seller would be liable? One who lets property for use, like one who sells it, is not responsible to third parties, by reason of a defect in the property. Griffin v. Jackson Co., 128 Mich. 653, 87 N. W. 888, 55 L. R. A. 318, 92 Am. St. Rep. 496, 548. The strongest view that can be presented to the contrary is that the Wheeling Company had sold this dangerous agent, knowing that it was to be conveyed over wires, and that unless such wires would be good and safe this agent might work harm, and that it must inspect such wires; that it was using those wires in performing its contract with the Bridgeport Company: and that it must see to the safeness of the instrument of delivery. But the fault of this argument is that it disregards the fact that delivery of the electricity had been already made, at the bridge end. It did not use the wires of the Bridgeport Company. The wires of the Bridgeport Company were not the vehicle of the conveyance of electricity as still the property of the Wheeling Company. As well might we say that when the seller of an article conveys it in his wagon to the place of delivery, and there transfers it to the wagon of the purchaser, and that harm is done by the latter's wagon or by the article later on, the seller would still be liable for damages therefrom. Surely a seller of an article, dangerous or not, after delivery to the purchaser, is not liable to a third party for damages therefrom. If a manufacturer of electricity sell it to an owner of an automobile to be used in running it, the seller would not be liable to a third person damaged by the badness of the storing receptacle or the au-

tomobile. There is no privity of contract between them, of course, and liability cannot be predicated on contract in such case.

In this case there was no privity of contract between the Wheeling Company and Whitney. 92 Am. St. Rep. 549, note. If any liability exists in the case supposed or in this case, it must be founded on tort. The person sought to be charged must owe a duty to the person seeking to charge him, else there is no actionable tort. This duty was owing to Whitney from the Bridgeport Company, not from the Wheeling Company. The Bridgeport Company sold this electricity to the city and received pay therefor, and there was no relation between the city and the Wheeling Company, or between Whitney and that company. No matter that this wire was in a public street. It is...