Hyre v. Brown.

• Decision Date: 09 November 1926
• Docket Number: (No. 5686)
• Parties: Kenna K. Hyre, Admr. etc. v. C. L. Brown et al., Town of Ravenswood, Plaintiff in Error.
• Court: West Virginia Supreme Court

102 W.Va. 505

Kenna K. Hyre, Admr. etc.

v.C. L. Brown et al., Town of

Ravenswood, Plaintiff in Error.

(No. 5686)

Supreme Court of Appeals of West Virginia.

Submitted October 12, 1.926. Decided November 9, 1926

1. Municipal Corporations Municipality Maintaining Electric

Lighting Plant Has no Powder to Construct Lines Beyond Corporate Limits and no Liability Attaches for Tort in so Doing (Charter of Town of Bavenswood, § 20; Code, c. 47, § 28).

A municipal corporation owning, operating and maintaining an electric lighting plant under Chap. 47 of the Code, does not have power, expressed or implied, to construct lines beyond its corporate limits and thereby supply customers with electricity beyond such limits. And if it does so, its act is ultra vires, and no liability attaches as for a tort in its commission, (p. 508),

2. Same Municipality Can Exercise Only Powers Expressly

Granted or Necessarily Implied, or Those Essential to Accomplishment of Declared Objects of Corporation.

A municipal corporation possesses and can exercise only the following powers: (1) those granted in express words; (2) those necessarily or fairly implied in or incident to the powers expressly granted; (3) those essential to the accomplishment of the declared objects and purposes of the corporation not simply convenient but indispensable. (Dillon on Mun. Corp. (5th ed.), Sec. 237.) (p. 518.)

3. Same Power of Municipality Must be Denied Where There

is Reasonable Doubt as to Existence of Power.

Where a fair, substantial, reasonable doubt exists as to whether such corporation is possessed of a power, the power must be denied, (p. 518.)

Error to Circuit Court, Jackson County.

Action by Kenna K. Hyre, administrator of one Anderson, deceased, against C. L. Brown and the Town of Ravenswood. Judgment for plaintiff against the last named defendant, and it brings error.

Reversed; verdict set aside; remanded.

M. C.-Archer and Harper & Baker, for plaintiff in error.

Lewis H. Miller, J. L. Wolfe, W. F. Boggess and S. P. Bell, for defendant in error Brown.

T. J. Say re f Kenna K. IIyre and L. C. Somerville, for defendant in error IIyre.

Lively/ Judge:

This writ of error is to a judgment on a verdict of $5,500.00 in favor of plaintiff against the Town of Ravenswood for the death of plaintiff's intestate caus'ed by the alleged negligence of defendant in the operation of its municipal electric lighting plant.

Anderson, about 19 years old, plaintiff's intestate, had left Ravenswood about 7 o'clock A. M. December 12, 1922, riding a brown mare and leading a bay horse by a halter, going to his work with road construction contractors as a teamster. Shortly afterwards he was found dead in the public road, lying with his face partly submerged in a ditch of water on the west side of the road. The horse was lying near him, also dead, and the mare was about forty feet beyond in the direction he was traveling, lying partly in the same ditch but not dead. In his left hand, which was also submerged in the ditch, Anderson grasped what one of the witnesses' said was a live wire, while another witness said it was a stray wire from four to six feet long. Along the road on the west side in a field was an electric line; between it and the road was a fence over which briars, weeds and bushes had grown. Then there was a narrow strip of grass land between the fence and the ditch where Anderson was found. A severe rain and wind storm had occurred the night before, and an electric wire heavily charged with electricity, had been broken, presumably by the violence of the storm, and one end had fallen on the bushes and probably extended over to the ditch. Pyatt, a witness who first reached the scene of the tragedy, detecting the presence of electricity when he approached Anderson's body, gave instructions to some persons near the town to have the electric plant in the town shut down. The cur- rent was then turned off, and the horse got out of the ditch and walked off. The body of Anderson was removed from the ditch with the wire in his left hand, or, as one witness said, hanging to his clothes. His hand was severely burned, and there were burned places on his body wherever there was the presence of a metallic substance in his clothing. The evidence indicated that Anderson had dismounted; that the horse had walked ahead until he came near the ditch several paces' ahead. The evidence also indicated that the line was broken by coming in contact with a telephone pole standing between the road and the fence. The electric current came from an electric plant maintained and operated by the municipality, and was on a line leading from the corporate limits of the town to the dwelling of C. L. Brown about one-half a mile to the north of the town limits. The two-wire system leading from the corporate limits to Brown's house carried 2200 volts of electricity. At Brown's house a transformer reduced the voltage to 110 volts which was metered at his house, and for which electricity he paid monthly.

The suit is against the town and Brown jointly. The first count in the declaration says that the town owns the plant and negligently and carelessly permitted the current to go over the line which had been and was improperly and negligently constructed and maintained by Brown. And that the town was also negligent in not having its plant properly equipped with a device for detecting grounded wires, or if it did so, was' negligent in not shutting off the electricity when the wire was grounded. The second count is a variation of the negligence charged in the first. The third count charges that the line from the plant to Brown's house is jointly owned and maintained by Brown and defendant; that it was out of repair, and that the town negligently sent a heavy voltage over it knowing its unsafe condition; and that it fell in the public road, causing the death. Demurrers were interposed to the declaration and to each count, and were overruled (except to the fourth count, not in question here); the issues made up, and at the close of the evidence the court directed a verdict for Brown. The jury returned the verdict and answered special interrogatories prepared by the town.

In the trial a controversy arose between the co-defendants as to which of them constructed and maintained the lines leading from the corporate limits to Brown's house. The trial judge concluded that the controversy between the defendants was unimportant, holding that if the line was in fact out of repair and negligently constructed, defendant town was guilty of negligence in permitting the electricity in dangerous voltage to go over it; and that its failure to shut off the current when the wire was grounded was the proximate cause of the death. Therefore, he held that the town was primarily liable as the proximate caus'e, and instructed the jury to find for defendant Brown. The dismissal of Brown is one of the numerous alleged errors complained of by appellant town.

Appellant took the position in the trial and now asserts here that it was not liable, because the accident occurred outside the corporate limits' and it, the town, in sending its current over the wires beyond the corporate limits was going beyond its power and authority, and the act was ultra vires. It contends that the evidence of the injury was inadmissible against it in toto.

The charter of the town, Chap. 51, Acts 1868, does not expressly give it the power to provide for lighting the streets or furnishing light to the inhabitants. An electric, light plant was unknown. But Chap. 47 of the Code which does provide that the municipal authorities may erect and authorize or prohibit electric light works in the City (Sec. 28), also provides in Sec. 1 that the powers therein given shall be deemed an amendment to the charter of any city, town or village, except the City of Wheeling.

The charter does give the city power to erect, authorize or prohibit the erection of gas works or water works in or near the town. It is quite generally held that an express authority to light the streets, by necessary implication gives power to light the same by any means the municipality may employ. Note to Posey v. North Birmingham, 15 L. R. A. (N. S.) 711. And the weight of authority seems to be that under such charters the municipality may also furnish light to its inhabitants. Idem page 713; 19 R. C. L. 791, Sec. 97. That the town in manufacturing and furnishing electricity for a consideration to consumers, is1 performing a function not governmental and is therefore liable for negligence in carrying on its work in that regard, is not seriously controverted. Wigal v. City of Parkersburg, 74 W. Va. 25, and Warden v. City of Grafton, 99 W. Va. 249, strongly militate against the contention that such undertakings are governmental. When the city furnishes light and power to a consumer for a consideration, it could scarcely be said that it was carrying on a purely governmental function. The point stressed, and to be decided is, that although the operation of the electric light plant and the furnishing of light to domestic consumers is not governmental, and therefore renders the city liable for its negligence in so doing, it has no express or implied power to go beyond the city limits and furnish power or light to any person for any purpose.

Many of the cases cited by the town to show that its act in furnishing Brown with light one-half a mile from the corporate limits, was ultra vires, and therefore exempting it from all liability, are where the charter powers did not include the right to engage in the business out of which the negligence grew. Donald v. Harrisonburg, 104 Va. 533; Radford v. Clark, 113 Va. 199, and Duncan v. City of Lynchburg, 34 S. E. 964, hold that the charters did not give the municipalities power to own and operate rock quarries in or out of the city limits. And hence the city was not liable whether such quarries were operated in or out of the city. Likewise, in Posey v. North Birmingham...