Null v. Electric Power Bd. of City of Nashville

• Decision Date: 26 January 1948
• Citation: 210 S.W.2d 490,30 Tenn.App. 696
• Parties: NULL v. ELECTRIC POWER BOARD OF CITY OF NASHVILLE.
• Court: Tennessee Court of Appeals

210 S.W.2d 490

30 Tenn.App. 696

NULL v. ELECTRIC POWER BOARD OF CITY OF NASHVILLE.

Court of Appeals of Tennessee, Middle Section.

January 26, 1948

Certiorari Denied by Supreme Court May 3, 1948.

Appeal in Error from Circuit Court, Davidson County; E. F. Langford Judge.

Action by Mrs. Minnie Null, administratrix, against Electric Power Board of the City of Nashville, for alleged negligence causing the electrocution of plaintiff's 22-month-old child. From judgment for defendant based on a directed verdict, the plaintiff appeals in error.

Reversed and remanded.

Jack Norman and Louis Farrell, Jr., both of Nashville, for plaintiff.

T. O Morris and Hume, Howard & Davis, all of Nashville, for defendant.

FELTS Judge.

Plaintiff sued defendant for alleged negligence causing the electrocution of her 22-month-old child, James Richard Null. At the close of the evidence for plaintiff the trial judge directed a verdict for defendant. Plaintiff appealed in error and insists that the evidence made a case for the jury.

Defendant Board was created by Chapter 262, Private Acts of 1939, as an agency of the City of Nashville to acquire and operate the electric power distribution system in Davidson and adjoining counties. It supplies electricity to homes and businesses in this area, and is thus performing a proprietary, not a governmental, function and is liable for negligence of its employees in the same way as a private individual. Nashville Electric Service v. Luna, Tenn.Sup., 204 S.W.2d 529.

It has a high voltage line along Cook Road in Davidson County and through its step-down transformers it furnishes to homes on that road electric current of reduced voltages suitable for lights and other home uses. One of these homes belonged to a Mrs. Sands and was occupied by her daughter, Mrs. Hale.

It was at this house that this accident happened. It occurred about 9:15 A.M. June 15, 1946. Plaintiff was a neighbor and a relative of Mrs. Hale and had come with her small children to do some work for Mrs. Hale. The lights were off but the radio was on. These two mothers were at work in the house, with their babies in sight on the front porch.

Plaintiff saw her baby walk off the porch and start toward the back yard. She told her oldest child, a daughter nine, to bring the baby on the porch. In a minute or two the daughter came back and said the baby was asleep. He was lying on the ground some six feet from the porch beside the house and a few inches from two exposed charged wires attached to a piece of iron pipe sticking up out of the ground, which had been put there to serve as the ground connection for the wiring in the house. One of the other children was shocked and badly hurt before they knew what had caused the baby's injury. It was later ascertained by an autopsy that he had been killed by an electric shock from this ground.

The wiring in this house was for lights and was designed for a current of only 110 volts. The purpose of this ground was to protect the house circuit from excess voltages which might occur through lightning or other causes. There had been one or more electric storms shortly before this accident. That afternoon some men, doubtless defendant's employees came, took out its transformer in front of this house, and replaced it with a new one. They also looked at this ground, took up the piece of iron pipe, and measured the depth it had been in the ground--nine inches.

This house circuit had been installed in July, 1945, by Louis Sands, a brother of Mrs. Hale and an electrical contractor. Defendant's employees had marked the place on the outside of the house where they desired to put the meter and the place where they would connect defendant's wires with the house circuit. To make the ground, he ran two bare copper wires from the switch box inside the kitchen through the wall, brought them along the outside of the wall toward the front about 15 feet, clamped them to a piece of iron pipe about three feet long, and drove one end of it into the ground till it struck rock.

The first ground of recovery relied on by plaintiff is that defendant was guilty of common law negligence which caused the death sued for. There is no dispute as to the applicable law.

Where a company merely transmits its electric current from its line to the consumer's wires, which it did not install and does not control, it has no duty to inspect such wires and is not liable for injury caused by defects in them. Gas & Electric Co. v. Speers, 113 Tenn. 83, 81 S.W. 595; Delaney v. Town of Etowah, 182 Tenn. 386, 187 S.W.2d 531.

But where the company knows of such a defect, its duty is to stop and not to send its deadly current to the defective wiring of the consumer, and it is liable for injuries to person or property caused by breach of this duty. Gas & Electric Co. v. Speers, supra; Bristol Gas & Electric Co. v. Deckard, 6 Cir., 10 F.2d 66, 67; and cases cited in Annotation, 134 ALR 526-529.

In such a case the company's duty to protect the consumer and others lawfully on his premises is similar to that which it owes the public to protect them from its overhanging wires (Bristol Gas & Electric Co. v. Deckard, supra), and this requires it to exercise the highest or utmost degree of care. Nashville Interurban Ry. Co. v. Gregory, 137 Tenn. 422, 429, 193 S.W. 1053; Bristol Telephone Co. v. Weaver, 146 Tenn. 511, 525, 243 S.W. 299; Town of Clinton v. Davis, 27 Tenn.App. 29, 177 S.W.2d 848.

To support this charge of common law negligence, plaintiff insists that the jury could have reasonably found from the evidence that this ground for the house circuit failed to meet the safety requirements of Chapter 897, Private Acts of 1921, and was defective and dangerous; and that defendant inspected it, knew it was defective and dangerous, and with such knowledge connected its wires to those in the house and continued to send its current on them until it killed this child.

By that Act, applicable to Davidson County, the Legislature enacted safety regulations for installing wiring for electric current for light, heat, and power purposes. That Act adopted, as the standard for such work, the National Electrical Code rules. They state:

'Circuits are grounded for the purpose of limiting the voltage upon the circuit which might otherwise occur through exposure to lightning or other voltages higher than that for which the circuit is designed; or to limit the maximum potential to ground due to normal voltage.'

These rules permit the use of iron pipes as electrodes for grounds, where a water piping system is not available for such use; but they require that the iron pipes 'shall be not less than 3/4"' internal diameter' and shall be driven into the ground 'to a depth of at least 8 feet.' Where this cannot be done because of rock bottom, the pipes 'shall be buried in a horizontal trench' and 'shall not be less than 8 feet in length.'

The ground in the case before us failed to meet these requirements. This pipe was 3/4"' external diameter, not 3/4"' internal diameter. It was only about three feet long, driven only nine inches into the ground with the other end sticking up about two feet above the ground. These copper wires were not insulated. If they had been insulated and the pipe the required length and completely buried, this accident would not have happened. We think the jury could well have found that this ground was defective and dangerous and that such defect, coupled with defendant's continued sending of its current through the house circuit, was a substantial factor in causing the death of this child.

This, however, was not enough to charge defendant. There must also have been evidence from which the jury could have found that defendant had knowledge of the defect. Plaintiff sought to prove such knowledge on the part of defendant by evidence as to the course of dealing between it and the Davidson County Electrical Inspector and a custom by it to connect and furnish its current to house circuits before they had been inspected by the Inspector and to make the inspections itself before making the connections.

The Legislature by the Act referred to created the office of Electrical Inspector and charged him with the duty of enforcing its safety requirements. It made it his duty to make proper inspections of all wiring for light, heat, and power purposes; to collect the inspection fees prescribed; to approve such wiring as met the requirements of the Act and issue a certificate of his approval; and then to issue written permits allowing electric current to be supplied to such wiring.

The Inspector was notified when the wiring in this house was finished. He, however, did not inspect it, did not approve it, and did not issue any certificate of approval. Instead, he telephoned defendant and it filled out a so-called permit itself. It did this from a pad of printed blank form permits which had been furnished it by the Inspector, and which form (Ex. 1, Beazley) was as follows:

'Service Connection for Electric Wiring is Hereby granted.

For ________

At ________

Work Done by ________

Lights _____

Range _____

W.H. _____

Heater _____

Pending Inspection Electrical Inspector, Davidson County'

The Inspector, A. E. Beazley, testified they had adopted this custom of defendant's filling out the blank form permits and connecting and furnishing its current to house circuits, without any inspection by him, because the business of his office had grown so that he could not make the inspections beforehand, as required by the statute. He said the inspection fees had increased from $1,500 in 1923 to between $15,000 and $20,000 in 1947. Asked if it was a custom of defendant to make inspections itself before making its connections, he said:

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