Gibson County Elec. Membership Corp. v. Hall

• Decision Date: 30 May 1947
• Citation: 222 S.W.2d 689,32 Tenn.App. 394
• Parties: GIBSON COUNTY ELECTRIC MEMBERSHIP CORPORATION v. HALL.
• Court: Tennessee Court of Appeals

222 S.W.2d 689

32 Tenn.App. 394

GIBSON COUNTY ELECTRIC MEMBERSHIP CORPORATION v. HALL.

Court of Appeals of Tennessee, Western Section.

May 30, 1947

Certiorari Denied by Supreme Court October 3, 1947.

Action by Rufus G. Hall against Gibson County Electric Membership Corporation for injuries sustained when defendant's electric transmission line fell on plaintiff.

The Circuit Court of Obion County, E. A. Morris, J., entered judgment on a verdict of $10,000 in favor of plaintiff, and defendant appeals in error.

The Court of Appeals, Anderson, P.J., affirmed the judgment holding that the verdict was not excessive and that the evidence warranted finding that defendant failed to exercise the high degree of care required of it and that such negligence was a proximate cause of injury.

J. Frank Warmath, Humboldt, Sam C. Nailling Union City, for plaintiff in error.

Miles & Miles, Union City, Harvey R. Teague, Ridgely, for defendant in error.

ANDERSON, Presiding Judge.

This is an action for damages for personal injuries sustained by the defendant-in-error, Rufus G. Hall, when he came in contact with an electrically charged wire maintained by the plaintiff-in-error, Electric Membership Corporation. The trial resulted in a verdict and judgment in favor of the defendant-in-error. The damages were fixed at $10,000.00. The case is here upon an appeal in error by the Corporation.

For convenience, the parties will hereinafter be referred to as of their status in the trial court: Hall as the plaintiff and the Corporation as the defendant.

Among other pleas, the defendant filed one of accord and satisfaction. To this the plaintiff filed a replication, a portion of which the defendant moved to strike. This motion was overruled. Error is assigned upon that action. In his replication, the plaintiff first denies that there was any bona fide accord and satisfaction and then sets out in detail the circumstances relied upon to show the defendant's lack of good faith in the transaction relied upon. The defendant's motion to strike goes to the latter part of the replication.

It is contended that the replication is couched in a conditional manner and that this is not permissible; that if a pleader seeks to avoid the legal effect of something advanced by his adversary, he must expressly or impliedly confess the averment to be true and then set out the reasons why the instrument or state of facts expressly or impliedly admitted will not be an obstruction to the recognition of his right as plaintiff or defendant, as the case may be; citing Tennessee Procedure in Law Cases, Sec. 765.

It seems to us that this is exactly what the plaintiff did in his replication. It denies that there was any bona fide accord and satisfaction, and proceeds to set out in detail the circumstances showing that the transaction relied upon by the defendant was not a bona fide one. In other words, the denial was not of the transaction but of the bona fides thereof.

It is insisted that in any event the attack upon the accord and satisfaction for fraud presented an equitable issue, triable only in a court of chancery. The contrary has been held a number of times. Memphis Street Railway Co. v Giardino, 116 Tenn. 368, 92 S.W. 855, 8 Ann.Cas. 176; Brundige v. Nashville, Chattanooga & St. Louis R Co., 112 Tenn., 526, 527, 81 S.W. 1248.

It is contended that plaintiff is barred by laches from attacking the settlement alleged to have been made with the defendant, in that he retained the money, $399.50, received by him and did not tender it back as soon as the fraud was discovered. The plaintiff tendered the amount received with his replication to the plea of accord and satisfaction, paying the same into the hands of the clerk of the circuit court subject to the defendant's demand. This was a seasonable tender. Memphis Street Railway Co. v. Giardino, supra; Glover v. Louisville & N. R. Co., 163 Tenn. 85, 40 S.W.2d 1031.

The principal contention is that the motion for a directed verdict made at the conclusion of all the evidence should have been sustained. There is no controversy about the degree of care required of one maintaining wires for the distribution of electricity. Due to the deadly character of the commodity, the rule has been variously stated. A short form is that while a company so engaged is not liable as an insurer; it is held to 'the highest degree of care which skill and foresight can obtain, consistent with the practical conduct of business' . 29 C.J.S., Electricity, § 39, page 576. Our own cases are in accord with this statement of the rule. Memphis St. R. Co. v. Kartright, 110 Tenn. 277, 75 S.W. 719, 100 Am.St.Rep. 807; Osborne v. Tennessee Electric Power Co., 158 Tenn. 278, 12 S.W.2d 947.

The jury found that the defendant was guilty of a breach of duty which was a proximate cause of the plaintiff's injuries. The first question is whether this finding has the requisite support of the evidence.

It appears that about daybreak on October 7, 1944, the plaintiff was walking along a public road between the communities of Cash Town and Gratio, when one of defendant's transmission lines fell upon him. As a result, he was severly burned.

The plaintiff testified that the wire 'was blowed over an oak tree', and burned through some limbs before falling on him; that his attention being first attracted by the falling of one of the limbs, he stopped and turned to see what had happened, and when he started forward again, he 'spied the line coming' toward him; that it struck his right arm which he had thrown up to ward it off and when it did so it 'caught hold of him' and he could not turn it loose. The throes of the plaintiff were described by an eye witness who corroborated him in other respects. The witness said that when the wire came in contact with the plaintiff's hands it 'looked like he caught fire'.

It is contended that the undisputed evidence on behalf of the defendant completely refuted any inference of negligence arising under the doctrine of res ipsa loquitur and required that a verdict be directed in its favor. The defendant relies upon the assertion by Mr. Justice Prewitt in Susman v. Mid-South Fair, 180 Tenn. 471, 176 S.W.2d 804, 805, that 'this doctrine (res ipsa loquitur) should be applied only where the circumstances leave no room for different inferences.' The theory of the defense was that the defendant's lines were constructed according to the highest safety standards and maintained according to standard practices pursued by concerns in the same business. It offered evidence to this effect and it now insists that since this evidence was uncontradicted 'the only reasonable inference of how this accident happened is that the line was knocked off the pole and down to the ground by reason of a lightning storm that took place in the early morning before the accident'. Expert evidence in the form of answers to hypothetical questions was introduced tending to establish this view.

It would serve no useful purpose to discuss the several objections which under the facts in this case we deem fatal to the defendant's contention. With reference to the supporting expert evidence, it is sufficient to say it postulated that there was in fact such a storm in the vicinity as that referred to. Opinions so based could not be accepted as establishing as a matter of law that the fall of the line was due to the storm for the reason, among others equally good, that the evidence was conflicting as to whether there was in fact such an event.

But without implying that we think the defendant's evidence otherwise sufficient to render unavailable the doctrine of res ipsa loquitur, we do not think that the plaintiff's case depended solely on that legal device in its primary meaning.

The evidence made available another rule which has been expressed by the Supreme Court as follows:

'Where, in addition to the facts which constitute the res in its distinctive sense, that is the infliction of the injury, and the physical agency inflicting it, there appear other facts which in and of themselves point to the responsible human cause, a case of circumstantial evidence is produced rather than a pure case res ipsa loquitur. However, in considering these additional circumstances the inference to be drawn from the res as above defined still operates in connection with the additional facts.'

North Memphis Sav. Bank v. Union Bridge & Construction Co., 138 Tenn. 161, 182, 183, 196 S.W. 492, 497.

Here, the additional evidence tending to fasten responsibility upon the defendant was elicited from its manager on cross-examination. It appeared that there was a safety device, consisting of a fuse, located on the line four or five miles east of the scene of the accident, designed to 'blow out' 'when the line was down' and 'comes in contact with any solid earth or something like that, other than a person's body', with the result that the line would be de-energized and thus rendered harmless.

After so testifying, the defendant's manager on cross-examination stated that whether the safety device did work upon the line's coming into contact with the limb of a tree depended upon the size of the limb; that if the limb 'was as big as your finger it possibly wouldn't (work)'; but that if it 'was as big as your arm it would (work)'; that in the present instance if in falling the line struck two limbs 'as big as your arm and one a little smaller', that contact 'would * * * be likely to blow the fuse', but that 'apparently it didn't (blow the fuse) until Mr. Hall got into it.'

By the undisputed evidence consisting of the testimony of two or three witnesses it was shown that of the three limbs burned by the falling wire, one was three inches in diameter, one was two to two and a...