Gurley v. Southern Power Co.

• Citation: 90 S.E. 943,172 N.C. 690
• Decision Date: 19 December 1916
• Docket Number: 386.
• Parties: GURLEY v. SOUTHERN POWER CO. ET AL.
• Court: North Carolina Supreme Court

90 S.E. 943

172 N.C. 690

GURLEY v. SOUTHERN POWER CO. ET AL.

No. 386.

Supreme Court of North Carolina

December 19, 1916

Clark C.J., dissenting in part.

Appeal from Superior Court, Guilford County; Cline, Judge.

Action by Mary J. Gurley, administratrix of her minor son, Samuel Shropshire, deceased, against the Southern Power Company and G. C. Howard. Judgment for plaintiff, and defendants appeal. Judgment as to Howard affirmed, and as to the company new trial granted.

In an action for wrongful death of a minor, where the court properly charged on the measure of damages, if defendant desired further instructions it should have requested them.

This is a civil action, tried upon these issues:

(1) Was the death of the plaintiff's intestate caused by the negligence of the defenants, as alleged in the complaint? Answer: Yes, both of them.

(2) What damage, if any, is plaintiff entitled to recover of defendants? Answer: $10,000.

From the judgment rendered, defendants appealed.

King & Kimball, of Greensboro, for appellant Howard.

Osborne Cocke & Robinson, of Charlotte, for appellant Power Co.

Peacock & Dalton, of High Point, and Brooks, Sapp & Williams, of Greensboro, for appellee.

BROWN J.

This is an action by the administratrix of Samuel Shropshire, a boy of 13 or 14, who was drowned in a tank at a substation of the Southern Power Company at High Point. In this substation there is a reservoir, the walls of which are made of cement which tank is 30 feet long, 35 feet wide, and 11 feet deep. The sides are straight down, very slick, and with moss on them. A wire ran along the top of the walls of the bank about 10 inches above it, fastened to iron rods extending out of the cement wall. Another wire extended from side to side about the center of the tank. This tank is about 15 feet from the wall of the substation and about that distance from its nearest door. On the day in question the tank lacked 6 or 8 inches of being full of water.

On Sunday, 30th of May, 1915, plaintiff's intestate, together with a 12 year old boy, went to this substation, passed through the gate, saw the defendant Howard, who had charge of the premises, paid him 10 cents apiece for their bathing suits, and went into this tank. Bathing suits were kept at the substation by Howard and furnished all boys desiring them. They were charged 10 cents each. When the intestate went in there were 11 or 12 boys then in the pool swimming or playing in the water.

The defendant power company requested the following instruction:

"If you find from the evidence that when the Southern Power Company inclosed the pool through one of its servants, Moser, it directed Edwards to cease to use the pool as a bathing pool, and thereafter it was run secretly, in a secret manner as far as the Southern Power Company was concerned, and unknown to the Southern Power Company or any of its officers, and purposely concealed from the power company, then I charge you that the Southern Power Company would not, in any wise, be responsible for the death of the plaintiff's intestate; and if you should answer the first issue, 'Yes,' you will go further and find, when you come to designate the defendant whose negligence was the cause of the death of the plaintiff's intestate, 'the defendant Howard.' "

That there is ample evidence to support the instruction tendered does not seem to be disputed. This prayer was not given either in words or substance. It is undisputed that Howard was running the pool for himself, and not for the power company, and that he alone received the emoluments. If, as the sixth request required the jury to find, Howard was acting secretly without the knowledge of the power company and contrary to its instructions, purposely concealing his conduct, then he was not acting as its agent, and the company can only be liable for the tort simply because it owned the pool. The doctrine of "dangerous instrumentalities" and "attractive nuisances" cannot justify the refusal to give the sixth prayer. It is irrelevant to the case for the reason that the pool is neither, and so held by the overwhelming weight of authority.

It is said (29 Cyc. p. 464) that:

"As to pools or reservoirs the weight of authority is that they are not to be classed with turntables, and the owner of premises on which a pool or reservoir is situated is under no obligation to keep the premises guarded against the trespasses of children." Thompson v. Ill. Central Ry., 105 Miss. 636, 63 So. 185, 47 L. R. A. (N. S.) 1101; Peters v. Bowman, 115 Cal. 345, 47 P. 113, 598, 56 Am. St. Rep. 106; Stendal v. Boyd, 73 Minn. 53, 75 N.W. 735, 42 L. R. A. 288, 72 Am. St. Rep. 597; Moran v. Car. Co., 134 Mo. 641, 36 S.W. 659, 33 L. R. A. 755, 56 Am. St. Rep. 543; Richards v. Connell, 45 Neb. 467, 63 N.W. 915; Klix v. Nieman, 68 Wis. 271, 32 N.W. 223, 60 Am. Rep. 854; Savannah, etc., Ry. Co. v. Beaver, 113 Ga. 398, 39 S.E. 82, 54 L. R. A. 314; Riggle v. L. C. Lens, 71 Or. 125, 142 P. 347, L. R. A. 1915A, 150, Ann. Cas. 1916C, 1083; McCabe v. Amer. Woolen Co. (C. C.) 124 F. 283, affirmed in 132 F. 1006, 65 C. C. A. 59; Sullivan v. Huidekoper, 27 App. D. C. 154, 5 L. R. A. (N. S.) 263, 7 Ann. Cas. 196; M., K. & T. R. Co. v. Moore (Tex. Civ. App.) 172 S.W. 568; Emond v. Kimberly, 159 Wis. 83, 149 N.W. 760; Charvoz v. Salt Lake City, 42 Utah, 455, 131 P. 901, 45 L. R. A. (N. S.) 652.

We will not undertake to quote from these decisions. They all deal with the subject under discussion, and hold that a pond or reservoir is not a dangerous instrumentality or an attractive nuisance. In almost every case the owner of the premises knew of the custom of boys entering thereon to bathe in the pool or pond, but was held not liable for any mishap. Bathing pools are nothing new or rare. They abound in almost every public park, gymnasium, and Y. M. C. A. building, as well as many country clubs. It is a well known and general custom for boys to swim in millponds and invade the lands of farmers to bathe in their marlpits. Who will contend that the millowner and farmer is liable for death or injury of the bathers because of such ownership? Millponds, swimming holes, and marlpits are equally as attractive to boys for bathing purposes as this particular reservoir.

The only other ground of liability as to the power company is the doctrine of respondeat superior. If the jury had found the facts (all supported by evidence) as set out in the sixth request, the power company should have been acquitted of responsibility. The reservoir in which the intestate of the plaintiff was drowned was built in 1909 as a necessary part of the substation of the defendant power company. It was properly constructed and was not dangerous when used for the purposes for which it was intended.

In 1911, the power company built a substantial fence around its substation, inclosing the reservoir, and, hearing that persons had been swimming in it, instructed its agent in charge of the substation to discontinue this practice and not to permit any one to enter the inclosure. It also caused a notice of, "No admittance," to be placed on the gate. The agent at the substation disobeyed these instructions, and in consequence the intestate of the plaintiff lost his life. It also appears, if the evidence of the defendant is true, that it was not necessary for the officers of the company to visit the station except at regular monthly intervals, and at other times when notified by the man at the station that repairs were needed, so that the man in charge knew at all times when to expect the officers of the company, and he testifies that he purposely deceived the company, that he was permitting boys to swim in the reservoir secretly and against the instructions of the company, and that he hid the bathing suits and other bathing outfit when officers of the company were expected. If the jury should accept this evidence (and they alone have the power to pass on its credibility), the defendant power company ought not to be held liable for the negligence of its agent because it was outside of the scope of his employment. The defendant had the right to have this view presented to the jury, which it endeavored to have done in the prayer for instruction which was denied. This court said, in Roberts v. Railroad, 143 N.C. 176, 55 S.E. 509, 8 L. R. A. (N. S.) 798, 10 Ann. Cas. 375:

"The test is not whether the act was done while * * * (the servant) was on duty or engaged in his duties; but was it done within the scope of his employment and in the prosecution and furtherance of the business which it was given him to do?"

In Bucken v. Railroad, 157 N.C. 443, 73 S.E. 137:

"We recognize the well-established rule that the master is not responsible for the tort of his servant when done without his authority and not for the purpose of executing his orders or doing his work, but wholly for the servant's own purposes and in pursuit of his private and personal ends."

In Dover v. Mfg. Co., 157 N.C. 324, 72 S.E. 1067, 46 L. R. A. (N. S.) 199:

"In an action for tort, in the nature of an action on the case, the master is not responsible if the wrong done by the servant is done without his authority and not for the purpose of executing his orders or doing his work. So that, if the servant, wholly for a purpose of his own. disregarding the object for which he is employed, and not intending by his act to execute it, does an injury to another, not within the scope of his employment, the master is not liable."

Again:

"This doctrine of respondeat superior, as it is now established, is a just but a hard rule. The master exercises care in the selection of his servant and retains in his service only such servants as are prudent and trustworthy; the servant in the prosecution of...