Jones v. City of Dyersburg

• Decision Date: 18 September 1967
• Citation: 440 S.W.2d 809,59 Tenn.App. 354
• Parties: Jesse JONES, Appellee, v. CITY OF DYERSBURG, Appellant.
• Court: Tennessee Court of Appeals

Page 809

440 S.W.2d 809

59 Tenn.App. 354

Jesse JONES, Appellee, v. CITY OF DYERSBURG, Appellant.

Court of Appeals of Tennessee, Western Section.

Sept. 18, 1967.

Certiorari Denied May 6, 1968.

A. D. Walker, Jr., Ewell & Ewell, Dyersburg, for appellant.

Barnett, Montgomery, McClintock & Cunningham, Jackson, Miss., Ashley, Malone, Ashley & Lawson, Dyersburg, for appellee.

CARNEY, Judge.

The City of Dyersburg has appealed from a judgment of the Circuit Court of Dyer County, Tennessee, for $50,000 in favor of the plaintiff below, Jesse Jones, for injuries sustained on September 24, 1964. The plaintiff came in contact with an electrical transmission line carrying 7,600 volts while working on a pole about 25 feet above the ground. Plaintiff was so severely burned that both feet had to be amputated above the ankles. The case was tried without a jury.

Plaintiff Jones was employed as a second class lineman for Safeco Construction Company of Jackson, Mississippi. The City of Dyersburg buys electricity wholesale from the Tennessee Valley Authority and supplies it retail to residents of Dyersburg and the nearby area through lines owned and maintained by the City of Dyersburg. The City had entered in a contract with L. O. Brayton & Company, a Tennessee corporation with its principal place of business in Dyersburg, at a total price of $120,000, for the extension and improvement of its electrical distribution system. L. O. Brayton & Company, with the knowledge and permission of the City of Dyersburg, subcontracted the work to Safeco Construction Company. The plans, specifications and contract for the project were prepared by Allen & Hoshall, a wellknown engineering firm of Memphis, Tennessee.

The principal contract between the City of Dyersburg and L. O. Brayton & Company provided that the work on the existing system should be done while the wires were 'hot.' From the contract we quote as follows:

'WORK ON ENERGIZED CIRCUITS:

In general all work on the existing distribution system shall be performed under energized conditions ('Hot').

In some cases, individual transformers and short primary taps may be de-energized PROVIDED that the prior approval of the Owner is obtained. Where it is permissible to de-energize a transformer or a line section, working (de-energized) periods shall conform to the following schedule: (9:00 A.M. to 11:00 A.M. and 1:30 P.M. to 4:00 P.M.). No exception to these hours shall be made and the contractor shall so lay out his work that re-energization shall take place on schedule.

All bids shall be based upon performing all work under energized condition ('Hot') as described above, including the furnishing of all necessary overtime labor. No claims have by the Contractor for extra pay to cover energized working conditions or for overtime work will be considered by the Owner.'

Working on hot lines is more hazardous and takes a longer time than working on cold or de-energized lines. Contractors regularly charge more for 'hot work.' The primary reason for the City of Dyersburg requiring the work to be done under 'hot' conditions was to cause a minimum of inconvenience to its customers from the lines being de-energized. Such 'hot' contracts are customary when work is being done on existing systems.

The accident in which plaintiff was injured happened about 11:00 A.M. All of the lines on the poles with which the plaintiff was working were hot and plaintiff knew it. Safeco's superintendent, Mr. Sam Riley, testified that on one or more occasions he had requested permission from Mr. Crawford, manager of the Dyersburg Electric System, to de-energize some of the lines and on each occasion had been refused. On the day in question no request had been made by Mr. Riley to de-energize any of the power lines on the pole at the intersection of Pate and Phillips Streets where plaintiff was injured. Plaintiff Jones had had four years experience as a lineman but had worked on hot lines about seven months.

Safeco Construction Company was covered by workmen's compensation insurance as required by the statutes of the State of Tennessee. The plaintiff, Jones, had received or was receiving such compensation at the time of the trial.

He brought this suit against the City of Dyersburg on the theory that the City of Dyersburg, as a supplier of electricity, owed the plaintiff and all other persons a non-delegable duty to use the highest degree of care to prevent the plaintiff or any other person who might be lawfully on the defendant's premises from being injured by said electricity. He relied principally upon the authority of International Harvester Co. v. Sartain, 32 Tenn.App. 425, 222 S.W.2d 854.

Plaintiff averred that the City of Dyersburg was negligent in failing to provide a safe place for the plaintiff to work; was negligent in failing to see that the plaintiff was furnished with proper and necessary safety equipment; was negligent in failing to determine that the plaintiff was capable of performing the hazardous and inherently dangerous work requried by the contract; in failing to inspect the work by Safeco; was negligent in failing to warn the plaintiff of the imminent danger inherent in the performance of the contract and was negligent in failing to provide proper overcurrent protection such as fuses and breakers which would de-energize the line when any person or object came in contact with it. Defendant filed a plea in abatement and demurrer. Both were overruled by the Trial Judge. After hotly contested trial His Honor the Trial Judge found all issues in favor of the plaintiff and assessed his damages at $50,000.

In a written finding of fact the Trial Judge found the defendant City of Dyersburg guilty of proximate negligence as follows:

(1) Two of the three primary lines carrying 7,600 volts on the pole where plaintiff was injured could have been de-energized without interruption of service to defendant's customers at the time the plaintiff was injured; that the primary line upon which plaintiff was burned had not been used for a year or more prior to the accident and was maintained in an unsafe energized state.

(2) The secondary wires could have been de-energized at little interruption of service to residential customers.

(3) The circuit breakers could have been set to open with the first contact rather than to open after three cycles of opening and closing with a maximum flow of current.

(4) The fuses were improperly set for the safety of workers handling energized wire.

(5) Protective equipment furnished by Safeco was worn, defective and insufficient to protect the workmen handling hot wires and the city failed to inspect it.

(6) The plaintiff, Jesse Jones, had only seven months actual experience working under energized conditions and was therefore insufficiently experienced to work on hot wires either primary or secondary and the city should not have permitted him to work on the hot lines.

(7) The City of Dyersburg failed to furnish mechanical jumpers to Safeco for use by its employees.

The City of Dyersburg's assignments of error I through V assail the action of the Trial Judge in overruling the demurrer and plea in abatement. Assignment of error No. I insists that the plea in abatement should have been sustained because the City of Dyersburg was a principal contractor and the plaintiff's right to recovery was limited to an award of workmen's compensation and having collected the workmen's compensation from Safeco's insurance carrier the plaintiff was not entitled to recover anything from the City of Dyersburg. Appellant cites and relies upon Clower v. Memphis Light, Gas & Water Division, 54 Tenn.App. 716, 394 S.W.2d 718, and Adams v. Hercules Powder Co., 180 Tenn. 340, 175 S.W.2d 319, 151 A.L.R. 1352. T.C.A. Section 50--915 provides as follows:

'50--915. Liability of principal intermediate contractor or subcontractor for injuries to any employee--Remedies--Recovery.--A principal, or intermediate contractor, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors and engaged upon the subject matter of the contract to the same extent as the immediate employer.

Any principal, or intermediate contractor, or subcontractor who shall pay compensation under the foregoing provisions may recover the amount paid, from any person who, independently of this section, would have been liable to pay compensation to the injured employee, or from any intermediate contractor.

Every claim for compensation under this section shall be in the first instancepresented to and instituted against the immediate employer, but such proceedings shall not constitute a waiver of the employee's rights to recover compensation under this law from the principal or intermediate contractor, provided that the collection of full compensation from one (1) employer shall bar recovery by the employee against any others, not shall be collect from all a total compensation in excess of the amount for which any of said contractors is liable.

This section shall apply only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under his control or management. (Acts 1919, ch. 123, § 15; Shan.Supp., § 3608a164; Code 1932, § 6866.)'

In our opinion neither the Clower case not the Hercules Powder Company case is applicable to the case at bar. L. O. Brayton & Company is the principal contractor and not the City of Dyersburg. The City of Dyersburg was not liable for workmen's compensation under T.C.A. Section 50--915 and therefore, the plaintiff is not barred from filing suit for alleged negligence on the part of City of Dyersburg in addition to recovering workmen's compensation. International Harvester Co. v. Sartain, supra. Therefore, assignment of error No. I is respectfully overruled.

Assignment of error No. II insists that the plea in abatement should have been...