Kanipe v. Grundy County Rural Electric Co-op.
| Decision Date | 18 November 1941 |
| Docket Number | 45734. |
| Citation | 300 N.W. 662,231 Iowa 187 |
| Parties | KANIPE v. GRUNDY COUNTY RURAL ELECTRIC CO-OP. |
| Court | Iowa Supreme Court |
Appeal from District Court, Grundy County; George W. Wood, Judge.
A suit for damages, plaintiff claiming her husband's death was caused by the negligence of defendant. Verdict and judgment for plaintiff. Defendant appealed.
Affirmed.
Hallagan, Fountain, Steward & Cless, of Des Moines, and Willoughby, Strack & Sieverding, of Grundy Center, for appellant.
O. H Allbee, of Marshalltown, Bordewick & Powell, of Traer, and J W. Tobin, of Vinton, for appellee.
About two o'clock on the afternoon of April 7, 1939, plaintiff's husband, Chester A. Kanipe, an employee of the Cento Construction Company, was killed by contact with a live wire on an electric highline of defendant.
The Cento Construction Company, as an independent contractor, had constructed several miles of defendant's electric system. It appears defendant had accepted the project built by Cento Construction Company and was furnishing electricity to its customers several days prior to the death of Mr. Kanipe.
There were sags in the electric wires at several places on the line and it was the duty of the construction company to tighten loose wires to the proper tension under its contract to complete the work in a workman-like manner, otherwise, so far as shown by the record, the project had been completed.
Otto Tennant was the general maintenance man for defendant. His duties were to keep its lines in operation and repair.
One of the important issues in the case is whether Tennant, at the time of the death of Kanipe, was an employee of defendant or a loaned or special employee of the construction company.
Plaintiff charged in her petition that Tennant, an employee of defendant, was negligent: First, in turning on the electricity on the wires upon which Chester A. Kanipe was working, when Tennant knew, or by the exercise of proper care should have known, that the deceased was working on the said wires. Second, in failing to warn the deceased of the fact that Tennant was re-energizing the line with a powerful current of electricity.
Defendant has presented three propositions on which it relies for reversal, all of which are based on the alleged error of the court in overruling its motion for a directed verdict. Defendant's assignments of error are: 1. Otto Tennant was a loaned or special employee of the Cento Construction Company on April 7, 1939, and was not an employee of defendant at the time Mr. Kanipe received his injuries. 2. There is no evidence from which the jury could find the defendant or its employees were negligent. 3. Plaintiff's decedent was guilty of contributory negligence.
The following evidence is material to the questions presented for decision on this appeal: In the evening of April 6, 1939, Mr. Cento went to the office of defendant and told Tennant that the wires had to be resagged at three places on the line, two of which were northeast of Gladbrook and one west of Gladbrook, and asked him whether he would be available the next day to cut off the current at the three places so his crew could tighten the wires. Tennant replied that he would be available and was told where he should meet Cento's workmen the next morning. Before leaving the next morning R. F. Cramer, superintendent of defendant co-operative, gave Tennant authority to de-energize the line as requested by Cento. Mr. Cramer testified:
Tennant met the construction crew the next morning at the appointed place. The crew consisted of Martin Conley, Patrick O'Malley and Chester Kanipe.
There were two wires on the new construction. The top wire was the live or hot wire and the bottom wire was the neutral or cold wire. On this first job northeast of Gladbrook, Tennant de-energized the line by removing the jumper from the top wire and connecting it with the neutral wire. This was done about a quarter of a mile north of where the men were to work. Tennant returned and told the crew the wire was dead, remained until the work was completed, and then replaced the jumper which re-energized the line.
At the second place at which the wires were to be resagged, Tennant cut off the current about five miles away in the same manner as at the first place. He drove back to the crew and told them he had cut off the current. Tennant then gave foreman Conley a pair of rubber gloves and a short piece of copper wire and directed him to test the wires so that he-Tennant-would be sure that he had de-energized the right line. Conley, at the direction of Tennant, made the test and found the current was off.
Tennant then left this place and when he returned the crew had gone. Tennant then patrolled this line to assure himself that the men had completed their work on this line and were not working on the wires. He then re-energized this line.
Tennant then proceeded to the third place where the wires were to be tightened to the proper tension and found the crew waiting for him. It was at the east end of this third line that Mr. Kanipe received the injuries that resulted in his death. This line, called a stub line, was about a mile and a quarter long, running east and west. Tennant met the crew about two-thirds of a mile west from the east dead end of the line. He then drove about two and a quarter miles and pulled a switch that cut off the current on this line. When he returned he told the crew the line was dead and they could go to work. He then asked Conley how long it would take to resag this line. Conley stated: Tennant then went to Conrad for lunch. From this place where the conversation occurred, which was two-thirds of a mile west from the east dead end, the crew worked west resagging the wires to the east dead end. They then went to the east one-half of the line to repair an improper sag near the east dead end of the line.
Kanipe worked on the second pole from the end and Conley on the third pole. At that time the top wire was dead. Kanipe finished his work on the second pole and climbed up and started to work on the corner pole. His head came in contact with the top wire and he was electrocuted by receiving the full charge of electricity of 7,000 volts. Mr. Tennant had returned to the place where he first met the crew and not seeing the men there or west of said place he assumed they had completed the job and he turned on the current.
When Tennant returned to the point two-thirds of a mile east of the east dead end he could not see the men working at the east end because a hill obscured his vision. The reason Tennant gives for not driving down the east end of the line to find out whether the men were working on that part of the line is that he claims Conley told him at the place two-thirds of a mile west of the east dead end that he was going to resag from that point west to the dead end, and said nothing about resagging east of that point or at the east dead end. That Conley's version of the conversation as above set out is quite different than Tennant's version, and that Conley immediately went to the east end of the line after resagging the west part of the line, will be referred to later in the opinion. When Tennant closed the switch he did not know where the men were. All he knew was that they were not working on the west part of the line.
We will consider defendant's first proposition, and the question is whether Tennant on April 7, 1939, and at the time of the accident was an employee of the construction company or of the defendant. We are of the opinion this question was properly submitted to the jury.
The test of relationship of master and servant is not only the actual exercise of power of control by the master over the details and methods to be followed by the servant in the performance of the work, but also the right to exercise such control. Pace v. Appanoose County, 184 Iowa 498, 168 N.W....
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