Higgins v. D & F Elec. Co.

• Decision Date: 19 November 1964
• Docket Number: Nos. 40946,No. 3,40947,s. 40946,3
• Citation: 140 S.E.2d 99,110 Ga.App. 790
• Parties: Margaret S. HIGGINS, Executrix and Individually, v. D & F ELECTRIC COMPANY
• Court: Georgia Court of Appeals

Page 99

140 S.E.2d 99

110 Ga.App. 790

Margaret S. HIGGINS, Executrix and Individually, v. D & F ELECTRIC COMPANY.

Nos. 40946, 40947.

Court of Appeals of Georgia, Division No. 3.

Nov. 19, 1964.

Rehearing Denied Dec. 8, 1964.

Syllabus by the Court

Count 1 of each petition as amended stated a cause of action against the defendant electrical company, and the trial court erred in sustaining the company's general demurrer and motion to dismiss each of these counts.

The plaintiff on December 18, 1963, filed suit to recover damages for the wrongful death of her husband allegedly caused by the negligence of the defendant electrical company and of its employee and agent, Claude Cecil Cash, who was named as a party defendant but was never served. A companion suit was brought by the plaintiff in her capacity as executrix of her husband's estate to recover damages for pain and suffering, medical and funeral expenses in connection with the alleged wrongful death. The material allegations of both petitions are identical and they will be treated and referred to as one petition for the purposes of this opinion.

The defendant electrical company filed its demurrers on January 16, 1964. On February 6, 1964, prior to hearing on the demurrers, the plaintiff filed an amendment to her petition adding a second count thereto. On February 18, 1964, the defendant company renewed its demurrers and further demurred to both counts of the petition as amended.

The renewed demurrers to the amended petition came on to be heard before the trial court on March 6, 1964, and an order was entered by the court sustaining defendant's general demurrers to both counts of plaintiff's amended petition. On March 11, 1964, the court vacated the March 6 order and entered a new order, still sustaining defendant's demurrers to both counts of plaintiff's amended petition but allowing plaintiff fifteen days in which to amend. On March 24, 1964, within the fifteen day period, plaintiff filed a second amendment to her petition.

Count 1 of the amended petition alleged that at all times referred to therein the defendant electrical company was engaged in rendering services to the general public as an electrical contractor, such services including the installation of wiring for the transmission of electric current in private residences; that the rendering of services to the public as an electrical contractor in Fulton County, Ga., is regulated by an Act of the General Assembly of the State of Georgia (Ga.L.1937-1938, Ex.Sess., p. 327) as amended by the Act of 1943 (Ga.L.1943, p. 484) that the defendant electrical company was in compliance with said statute at all times referred to therein, in that its president and managing officer, Walter C. Fink, Jr., had been duly licensed as a master electrician by the Fulton County Board of Electrical Inspectors; and that at all times referred to therein defendant Cash was employed as an electrician by defendant electrical company but was not himself licensed as a master electrician under the aforesaid Acts.

Count 1 further alleged that during and prior to the times referred to therein the defendant company followed a practice of authorizing certain of its employees, including defendant Cash, to negotiate and enter into contracts on behalf of the defendant company for the performance of electrical services; that under said practice the employee furnished the labor and materials for performance of the work so contracted and received payment therefor, and the defendant company retained the right to direct and control the time and manner of performance of such work, obtained the required work permits from the appropriate governmental authority, and assumed the responsible direction and control of the work performed by such employee; that defendant Cash was allowed to participate in said practice as an emolument of his employment with the defendant company; that said practice was beneficial to the defendant company in that the valuable fringe benefit conferred upon those employees allowed to participate in said practice was reasonably calculated to stabilize and harmonize the employer-employee relationship between defendant company and said employees; and that plaintiff's late husband, Anthony B. Higgins, was a general building contractor who had dealt on prior occasions with both the defendant company and defendant Cash, and said Higgins was well aware of the aforesaid practice of the company.

Count 1 further alleged that on or about September 1, 1962, said Anthony B. Higgins negotiated an oral agreement with defendant Cash who purported to be acting as agent for the defendant company pursuant to the aforesaid practice, under the terms of which agreement defendant Cash agreed, purportedly on behalf of the defendant company, to furnish material and perform lobor required in altering the existing electrical wiring and installing new wiring in connection with the enclosing of an existing carport and the construction of a new carport at 245 Colewood Way, Fulton County, Ga., which was the residence of plaintiff and her late husband; and that said residence is not located within the limits of any municipality having a population of 150,000 inhabitants or more.

Count 1 further alleged that the electrical work to be performed pursuant to said agreement required approval by the Electrical Inspection Department of Fulton County, Georgia which approval would be given only to work performed by an electrical contractor duly licensed pursuant to the aforesaid Acts, and this fact was well known to Anthony B. Higgins and to defendant Cash; that defendant Cash represented to said Anthony B. Higgins that he was authorized to enter into such agreement on behalf of the defendant company pursuant to the aforesaid practice of the company, and in making the agreement said Higgins relied upon said representation and upon the fact that the defendant company had previously held defendant Cash out to Higgins as its authorized agent under the aforesaid practice.

Count 1 further alleged that on or about September 1, 1962, defendant Cash entered upon the performance of the agreed work at the residence of plaintiff and he performed portions of said work from time to time thereafter; that on or about September 7, 1962, before the agreed work had been completed, anthony B. Higgins and defendant Cash, who still purported to act as authorized agent for and on behalf of the defendant company, modified and expanded the terms of the aforesaid agreement so as to include the changing of the entire electrical system throughout the residence from a 100-amp fuse-type system to a 200-amp breaker-type system; that to induce said Higgins to authorize such additional work, defendant Cash had represented the additional work would qualify Higgins to participate in a certain Residential Rewiring Program of Georgia Power Company; and that under said program Georgia Power Company made a public offer to pay to licensed electrical contractors the sum of $100 to be applied towards payment of the contractor's charge to the homeowners for performing certain types of electrical work which qualified under the terms of the Georgia Power Company program.

Count 1 further alleged that defendant Cash performed a part of the agreed work at the Higgins' residence of September 23, 1962, at a time when Anthony B. Higgins was present but not in control of the work; that during the performance of work on said date, it became necessary for defendant Cash to drill two holes in a floor joist in the basement of the Higgins' residence; that because of an alleged physical disability, defendant Cash informed anthony B. Higgins that he (Cash) was unable to hold and support an electric drill needed to drill the required holes, and defendant Cash enlisted Anthony B. Higgins to operate the electric drill and bore the required holes; and that defendat Cash instructed Anthony B. Higgins as to the locations of the holes to be drilled and thereupon departed the basement area.

Count 1 further alleged that the drilling of such holes with an electric drill in the vicinity of hidden wires charged with electricity is, in its nature, dangerous to the operator of the drill, however carefully performed, and this fact was well known to defendant Cash but was not known to Higgins, who had no training or experience as an electrician; that in boring the required holes as instructed by defendant Cash, the drill being operated by Anthony B. Higgins struck a hidden wire charged with electricity located behind the floor joist, causing a severe electrical shock to be administered to Higgins; and that said electrical shock caused such excruciating pain and suffering to Higgins that he died from said shock several minutes after it was sustained by him.

Count 1 further alleged that the defendant company furnished no supervision, direction or guidance to defendant Cash prior to the time Higgins sustained the aforesaid fatal injury; and that defendant Cash thereafter completed his performance of the agreed work on or before October 5, 1962.

Count 1 further alleged that on or about October 5, 1962, the defendant company, acting by and through its president, Walter C. Fink, Jr., executed and submitted to Georgia Power Company a written application seeking to have the electrical work performed as aforesaid qualified under the terms of the Georgia Power Company's Residential Rewiring Program hereinabove described; that prior to execution of said application, the defendant company had actual knowledge of all material facts stated herein, including actual knowledge of the wrongful acts committed by defendant Cash, as hereinafter more particularly described, and by such application the defendant company represented and acknowledged to Georgia Power Company that the aforesaid work performed by defendant Cash was done by the company or under its direction, and that the defendant company was fully responsible therefor;...