Olivedell Planting Co. v. Town of Lake Providence

• Decision Date: 29 May 1950
• Docket Number: Nos. 39181-39183,s. 39181-39183
• Citation: 47 So.2d 23,217 La. 621
• Court: Louisiana Supreme Court
• Parties: OLIVEDELL PLANTING CO., Inc., et al. v. TOWN OF LAKE PROVIDENCE. MITCHINER et al. v. TOWN OF LAKE PROVIDENCE (two cases).

Page 23

47 So.2d 23

217 La. 621

OLIVEDELL PLANTING CO., Inc., et al. v. TOWN OF LAKE PROVIDENCE.

MITCHINER et al. v. TOWN OF LAKE PROVIDENCE (two cases).

Nos. 39181-39183.

Supreme Court of Louisiana.

May 29, 1950.

McIntosh, Sims & Hester, Oak Grove, Captan Jack Wyly, Lake Providence, for defendant, appellant.

R. V. Reeves, Oak Grove, Theus, Grisham, Davis & Leigh, Monroe, for plaintiffs-appellees.

MOISE, Justice.

The town of Lake Providence is appealing in these three consolidated cases from judgments for damages against it totaling $40,662.00, with legal interest from December 11, 1945. The basis of the actions is one sounding in tort against the Town for the negligent operation of its electric light and power plant, the proximate cause of the loss of plaintiffs' properties by fire.

The plaintiffs, in three separate suits, alleged specific acts of negligence of the Town of Lake Providence in the construction, maintenance and operation of its transmission lines, and have filed a plea of res ipsa loquitur.

The defendant filed a blanket exception of no right or cause of action, without specifying the basis of its contention. It also filed a plea attempting to attack the validity of Section 13 of Act 136 of 1898, as amended, contending generally that the same was unconstitutional but without specifying any article or section of the Constitution allegedly offended by the Act. Later, defendant filed a plea attacking the constitutionality of Act 129 of 1942. The exceptions and pleas were argued and submitted, after which they were overruled by the district judge.

On the trial on the merits, the cases having been consolidated, 209 La. 898, 25 So.2d 735, judgments were rendered in each instance holding the statutes in question to be constitutional and awarding judgments in favor of each of the plaintiffs as prayed for, and against the Town of Lake Providence, with legal interest from December 11, 1945. Suspensive and devolutive appeals, without bond, were perfected by defendant. Plaintiffs have answered these appeals asking that interest be allowed from date of judicial demand.

The record discloses that the governing authority of the Town of Lake Providence authorized the construction and did construct electric light and power lines within the town itself and to also serve residents of the Parish outside of the corporate limits of the town, and through this line transmitted electric power, light and energy to its consumers, including the plaintiffs herein. The service to the patrons outside of the town's limits was in a proprietary capacity. The town erected a certain primary transmission line carrying 2300 volts in the approximate direction of, and along the west side of State Highway No. 45. Branching off from this primary line there were various secondary circuits which ordinarily carried 110 volts, the voltage serving the secondary circuits having been reduced through a transformer. A secondary circuit originating from the above described primary line crossed Highway 45 to serve an electric water pump and a tenant house on a plantation owned by Sen. Joseph E. Ransdell. In crossing the road two wires were used, one about 12 inches above the other. Another secondary circuit connected through this same transformer ran to the residence formerly occupied by E. S. Voelker and to the residence then occupied by S. K. Mitchiner; these two residences being on the same side of the road as the primary circuit. Another secondary circuit then crossed Highway 45 and serviced the store building owned and operated by Olivedell Planting Co. and the residence occupied by W. T. Mitchiner. All of these buildings were considerable distances apart. On the morning of January 15, 1944, about 5 o'clock a. m. all three buildings were completely destroyed by fire.

Highway 45 is a State Highway carrying heavy traffic. The 2300 volt primary circuit ran parallel with this Highway for a considerable distance and particularly along the same as it traversed the plaintiffs' properties. The record discloses that one of the secondary circuit wires crossing the highway had been broken two weeks before by a passing truck that had been hauling a dragline and a boom, and that one end of the broken wire had looped back over the primary circuit. After the insulation had eroded sufficiently for a direct contact to be made, the secondary wire became charged with 2300 volts and burned up, and the resulting contact with the wires leading to plaintiffs' properties caused the conflagration and destruction of the buildings belonging to the plaintiffs. The only other building on the secondary line had had the current turned off sometime previously, and it did not burn.

The secondary circuit wire had been broken several times before, both before and after the occurrence of the break of Jan. 1, 1944. On the date the break in question occurred the secondary wire had a clearance over State Highway 45 of only 10 feet, 8 inches, notwithstanding the fact that the minimum vertical clearance prescribed by the Louisiana Department of Highways where a transmission line crosses a State road is 20 feet above said road, and the minimum vertical clearance prescribed by the National Electric Safety Code where a transmission line crosses a public road is 18 feet. Two witnesses knew of the broken wire, one having been an eye-witness to the actual break and the other having seen it subsequently. It is said that the Power Plant Superintendent received no notice of the defect in the transmission line. None of the plaintiffs knew of the existence of the break since they continued to receive electricity. The Power Plant and distributing system operated by the Town of Lake Providence was not equipped with any safety device such as a line fuse, a general detector, or an automatic circuit breaker.

The defendant interposed as a defense to these suits the unconstitutionality of the Lawrason-Act 136 of 1898, as amended, Sec. 13, and of Act 129 of 1942, insofar as these statutes authorize municipalities to engage in enterprises of a private nature. Defendant specifically contends that the action of the municipality in operating a transmission line outside of its corporate limits is ultra vires and beyond the municipality, and that defendant cannot be held liable for any loss or damage resulting therefrom.

Act No. 136 of 1898 (the Lawrason Act) originally provided for the acquisition and operation of light plants by a municipality within its corporate limits, but the amendment of 1916, Act No. 135, provides, in part as follows:

'Section 13. * * *

'Second--To purchase, accept, receive by donation or otherwise, hold, and sell or otherwise dispose of real estate and personal property within or without the corporate limits, for all proper municipal purposes, and for * * * waterworks, electric lights, sewers, and all other municipal purposes.

* * *

* * *

'Fourth--To purchase or erect and to own, operate and maintain electric and gas light plants, street railway or traction systems, * * * any other revenue producing proper public utility, within or without their corporate limits and to regulate the same and to fix the rates for the consumption of the service so furnished.'

The pertinent provisions of Act No. 129 of 1942 read:

'Section 1

'* * * That municipal corporations in the State of Louisiana are hereby authorized to own, construct, acquire, purchase, lease, extend or improve, and operate waterworks systems, electric light and power plant systems, and combined waterworks and electric light and power plant systems, and any and all other properties incidental and necessary thereto; and are further authorized to sell and distribute either or both water and electricity within or without their corporate limits, and own, purchase, construct and extend distributing systems, pole lines and pipe lines for the purpose, and operate and maintain such properties in the interest of the public.

'Section 2. That municipal corporations through their respective governing authorities, are hereby authorized to make contracts, within their discretion, extending over a period not exceeding thirty years, with other municipalities and political subdivisions for the sale or purchase of an adequate supply of water and/or electricity to meet their requirements; and municipal corporations are further authorized and empowered to own, construct, maintain and operate the necessary water pipe lines, pole lines and equipment beyond their corporate limits to obtain or furnish such a source of supply.

* * *

* * *

'Section 4. That municipal corporations, through the respective governing authorities, shall have and are hereby vested with full power and authority to carry out the provisions of this Act, to expropriate lands for rights-of-way for such purposes, and to establish rates, rules and regulations with respect to the sale and or purchase of water and electricity, and to do all things which may be deemed necessary to supply their inhabitants and other consumers, as hereinabove provided for, with the benefits, convenience and advantages of water and/or electricity; and this Act shall be liberally construed to effect the purposes of its provisions and intent.

'Section 5. That any or all actions or proceedings heretofore taken by any municipal corporation for the purpose of carrying out the provisions of this Act, are hereby validated, and such actions or proceedings as are incomplete may be completed under the authority granted herein.' (Italics mine.)

Clearly, the provisions of the above Acts authorize the Town to serve consumers of electricity outside of the corporate limits, under the facts disclosed by this record. Our United States Supreme Court, in City of Omaha v. Omaha Water Co., 218 U.S. 180, 30 S.Ct. 615, 54 L.Ed. 991, 48 L.R.A.,N.S., 1084, forever put at rest the contention now made by defendant and the jurisprudence throughout the county is stabilized to the effect that...