De Gooyer v. Harkness

• Decision Date: 07 April 1944
• Docket Number: 8628.
• Parties: DE GOOYER et al. v. HARKNESS et al.
• Court: South Dakota Supreme Court

13 N.W.2d 815

70 S.D. 26

DE GOOYER et al. v. HARKNESS et al.

No. 8628.

Supreme Court of South Dakota

April 7, 1944

Fred D. Shandorf and Fellows & Fellows, all of Mitchell, for appellants.

Theo. H. J. Studt, of Highmore, and Royhl & Longstaff, of Huron, for respondents.

RUDOLPH Judge.

The plaintiffs are the special administrator and administratrix of the estate of their son, Gerald Karns DeGooyer. This action was brought to recover for the alleged wrongful death of Gerald. The defendants are the superintendent and athletic coach of the Highmore, South Dakota High School. The case was tried to a jury which returned a verdict in favor of the plaintiffs and the defendants have appealed.

The facts are substantially as follows:

The boys who participated in athletics in the High School at Highmore organized a club which is known in the evidence as the "H" Club. Boys who had been awarded the school monogram "H" for participation in athletics were eligible to membership in this club. Toward the end of each school year the members of the club attending the high school conducted an initiation to receive into the club those who had been awarded the "H" during the school year. The athletic coach generally participated in these initiation ceremonies which, in prior years, had been held in the basement of the Catholic Church at Highmore. However, in May 1941, the basement of the church was undergoing repairs and the defendant Maurice Gardner, who was the athletic coach of the Highmore High School, requested from the defendant Kenneth M. Harkness, who was superintendent of the Highmore Schools, that the club be permitted to conduct the initiation in the high school gymnasium. This request the superintendent granted. On the evening of May 1st, 1941, the members of the club met at a local cafe and had their dinner. They then adjourned to the high school gymnasium for the purpose of conducting the initiation. At initiations in prior years the candidates for membership had been given an electric shock which was produced by means of running electric wires connected with batteries through a transformer which reduced the current. In 1941 this transformer was not available and the boys prepared an appliance whereby a jar of water containing salt was used for a rheostat. The electric current was obtained from the electric light socket which carried a current measuring from 117 to 120 volts. Each boy was brought separately into the gymnasium, clothed only in shorts, and while blindfolded was caused to lie down upon the floor where several parallel wires had been connected. These wires were connected with the electric current which ran from the light socket through the jar of distilled water containing the salt solution. While the boy was lying on these wires he was either handed a glass of water or a glass of water was placed upon his chest. The current was then turned on the result being that the boy receiving the shock would respond and the glass of water would either spill over him or on the floor. At this particular initiation five candidates were being received. Following the administration of the electric shock and the spilling of the water, the floor was mopped and the defendant Gardner, who was present, tested the wires to determine the strength of the electricity. This test was made by placing the hands upon the wires. The fourth candidate to receive the electric shock complained that it was very strong and thereupon one of the boys emptied approximately one-half of the solution from the jar and filled the jar with city water. Thereafter, the wires were tested by Mr. Gardner and some of the boys present. Gerald was then brought blindfolded into the room, placed upon the wire mat, and the current was turned on; Gerald partially rose from the mat, said "Oh, My God" and fell backward, whereupon the current was immediately turned off. It was thought at first that Gerald had fainted, but it was soon discovered that his condition was serious and immediately a call was sent for doctors who soon arrived upon the scene. Attempts were made to revive Gerald, but these were unsuccessful. It appears quite definitely that Gerald died immediately upon receiving this electric shock. Gerald was twenty years old, six feet tall and weighed 175 pounds. He had been examined physically at the opening of the school year and found physically sound. This examination was conducted by a practicing physician in Highmore.

We consider first the liability of the defendant Gardner. The facts disclose that Mr. Gardner actively participated in the initiation activities, that it was he who tested the electrical appliance, and that he played an active role in this whole proceeding of administering the electric shock. We are of the opinion therefore, that so far as his liability is concerned it is immaterial whether he was acting in a personal capacity or in his capacity as athletic coach or teacher.

Electricty is generally recognized as a dangerous agency, and because of this fact this court has held that an electric company in the distribution of electricity is charged with the highest degree of care that skill and vigilance can suggest, consistent with the practical conduct of the business. Roster v. Inter-State Power Co., 58 S.D. 521, 237 N.W. 738. We are of the opinion that an individual should be held to a similar high degree of care when he joins with others in the act of transmitting into the body of another a current of electricity.

Such apparently, was the holding of the Alabama court in the case of Supreme Lodge of the World, Loyal Order of Moose et al. v....