Rotramel v. Public Service Co.
| Decision Date | 17 June 1975 |
| Docket Number | No. 47476,47476 |
| Citation | 1975 OK 91,546 P.2d 1015 |
| Parties | Dora Mae ROTRAMEL, Individually and as mother and next friend of Janice Anett Rotramel, Appellants, v. PUBLIC SERVICE COMPANY, Appellee. |
| Court | Oklahoma Supreme Court |
Don L. Dees, Tulsa, for appellants.
Robert L. Lawrence, R. Dobie Langenkamp, Tulsa, Robert W. Blackstock, Bristow, for appellee.
This is a wrongful death action by the heirs of John Austin Rotramel who was electrocuted when the aluminum ladder he was using while cleaning a building came in contact with defendant's 13,200 volt power line.
Plaintiffs allege in their amended petition that defendant power company was negligent in locating its uninsulated high voltage lines too close to the building, and in failing to install and maintain such lines with the highest degree of care and to warn persons who might be on the property of the danger involved. 1
The defendant demurred to the petition on the grounds that it did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer and dismissed the case. Plaintiffs appealed.
The issue to be decided is whether plaintiffs' failure to plead specifically defendant's non-compliance with the National Electric Safety Code (Code) is fatal to their petition. We hold that it is not.
The Oklahoma Corporation Commission in 1922 promulgated order No. 2072 prescribing rules and regulations for electric utilities. Rule No. 7(d) states:
'Accepted good practice shall be defined by the rules governing construction, operation and maintenance as found in the current editions of the National Electrical Safety Code and the National Electrical (Fire Code)'
and Rule No. 40(b) reads:
'(b) All construction, operation and maintenance of the plant, facilities and equipment of each utility shall comply fully with the requirements of the National Electrical Safety Code and the National Electrical (Fire) Code, thereby taking all possible care to reduce the life hazard: (1) to which employees are subjected by working in stations and substations and on overhead and underground lines; (2) to which the utility's consumers may be subjected by the introduction of its wires into the residences of the consumers; (3) and to which general public may be subjected by the presence of overhead wires in the public streets and ways.'
This rule was still in effect at the time of the accident although it has since been superseded by order No. 104932 of May 1, 1974.
A regulation or rule promulgated by an administrative agency charged with administration of an act has force and effect of law, United States v. Stanolind Crude Oil Purchasing Co., 113 F.2d 194 (10th Cir. 1940) and there is a presumption in favor of legality and of intent to comply with the law. A violation of a statute will not be presumed but must be proved by competent and substantial evidence. Texas Co. v. State ex rel. Coryell, 198 Okl. 565, 180 P.2d 631 (1947).
Since the plaintiffs did not specifically plead noncompliance with the Code, the Court of Appeals sustained defendant's demurrer based on the idea that it is presumed that the power line in question met the requirements of the Code and the Corporation Commission's order, since negligence is never presumed.
Defendant relies principally on three cases as setting the standard of care required of electric companies. In Oklahoma Gas & Electric Co. v. Wilson, 172 Okl. 540, 45 P.2d 750 (1935), plaintiff's husband was killed when a gin pole on his truck came in contact with defendant's high voltage wires. It was conceded that the height of the electric line met Code standards. The issue was whether O.G. & E. having complied with the Code standards was nevertheless guilty of negligence.
The Court held that a company which placed high voltage electric wires along the roadway as required by law and so that roadway was safe for ordinary use was not liable for injury resulting from contact of gin pole with wires, where gin pole was raised unnecessarily high by persons engaged in hauling and laying pipe. It further stated that such power companies are not insurers against injuries and that the companies are only required to reasonably guard against probabilities, but not against possibilities.
Rudd v. Public Service, 126 F.Supp. 722 (N.D.Okl.1954) was an action for wrongful death which occurred when three men were unloading a television antenna and in so doing lost control of it causing it to fall against a high voltage power line more than 24 feet above the street. The Court held that Generally, a power company has no duty to insulate power lines located more than 20 feet above ground or to post signs warning of existence of high voltage transmitted thereby, But duty may exist under exceptional circumstances. Where safety code is adopted by a state and constitutes a guide for electric companies, construction and maintenance of lines in accordance with such code constitutes prima facia evidence of absence of negligence. (Emphasis supplied).
Again, in the third case cited by the defendant, Daniel v. Oklahoma Gas & Electric Company, 329 P.2d 1060 (Okl.1958), a boy was electrocuted when the television antenna he was erecting came in contact with a power line of the defendant. The Court after Hearing the evidence directed a verdict for the defendant. It also held that in the absence of unusual conditions, the meeting of the requirements of the Corporation Commission and the National Safety Code by a power company constitutes the exercise of due care and is prima facie evidence of the absence of negligence. The Court had examined the record and held that no unusual condition was indicated which would require a greater degree of care than the meeting of these requirements.
Defendant contends that the standard of care set by these three cases is that in the absence of unusual circumstances the power company need only comply with the requirements of the Code to show lack of negligence. However, None of these cases was decided on a demurrer and evidence of each defendant's compliance with the Code was offered at trial....
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