Southwestern Public Service Co. v. Artesia Alfalfa Growers' Ass'n

• Citation: 353 P.2d 62,1960 NMSC 52,67 N.M. 108
• Decision Date: 09 June 1960
• Docket Number: No. 6631,6631
• Parties: SOUTHWESTERN PUBLIC SERVICE COMPANY, a corporation, Plaintiff-Appellant, v. ARTESIA ALFALFA GROWERS' ASSOCIATION, a cooperative association incorporated, Defendant-Appellee.
• Court: Supreme Court of New Mexico

Page 62

353 P.2d 62

67 N.M. 108

SOUTHWESTERN PUBLIC SERVICE COMPANY, a corporation Plaintiff-Appellant, v. ARTESIA ALFALFA GROWERS' ASSOCIATION, a cooperative association incorporated, Defendant-Appellee.

No. 6631.

Supreme Court of New Mexico.

June 9, 1960.

Hervey, Dow & Hinkle, Roswell, for appellant.

W. M. Siegenthaler, Artesia, Brown & Brainerd, Roswell, for appellee.

CHAVEZ, Justice.

Plaintiff-appellant, Southwestern Public Service Company, a corporation, filed suit to recover for services furnished defendant-appellee, Artesia Alfalfa Growers' Association, a cooperative association incorporated. Appellee filed its answer and a counterclaim alleging that three of its motors were damaged sometime between January 9, 1957, to June 1, 1957, through the negligence of appellant, and that appellant is indebted to appellee.

Appellant filed a motion for summary judgment on its original complaint and judgment was entered for appellant. Said judgment was paid and satisfied. Thereafter, the trial proceeded on appellee's counterclaim.

Appellant filed its answer to the counterclaim and the court, after hearing said cause, found the issues for appellee, made its findings of fact and conclusions of law and entered judgment for appellee. From said judgment, appellant, the original plaintiff, appeals.

Appellee is an incorporated cooperative marketing association located at Artesia, New Mexico. Appellant is a public service corporation maintaining its principal place of business at Roswell, New Mexico, and is engaged in the business of generating and transmission of electrical energy to the general public in and near Artesia, New Mexico.

Appellee, in 1957, owned and operated a feed processing mill at or near Artesia, New Mexico, which was equipped with numerous electrical appliances including three separate 200 H.P. 60 cycle electric motors which were specified by the manufacturer to be operated by three phase electrical energy of 2,300 volts.

Appellee, in its counterclaim, alleges that appellant owed the appellee a duty to furnish electrical energy, evenly balanced, and uniformly supplied in proper voltages in safe and convenient form in order to operate its equipment and appliances without danger to human life or property.

Appellee further alleged that between January 9, 1957, and June 1, 1957, appellant negligently failed to discharge such duty to appellee, and in violation of such duty negligently permitted the electrical energy to enter the premises in excessive, high, irregular, fluctuating and unbalanced voltages, and that appellant knew, or in the exercise of reasonable discretion, should have known that the energy then being supplied to appellee was not being delivered in a safe and convenient form, evenly balanced, and in a proper condition to be used safely in the operation of appellee's equipment and appliances. Appellee further alleged that by the exercise of proper diligence, appellant could have prevented the loss and damage complained of by proper installation and maintenance of its transmission lines and incidental equipment, which it negligently failed to do.

Appellee further alleged that as a direct and proximate result of the negligent acts and omissions on the part of the appellant, that three separate electric motors at the premises then owned by appellee between January 9, 1957 and June 1, 1957, were burned, the motor windings were destroyed and the appellee damaged in the amount of $5,735.41.

Appellant filed its answer denying the allegations of the counterclaim and in its first affirmative defense alleged that there was in force and effect a written contract between appellant and appellee which saved the company harmless from injury and damage to person or property.

In its second affirmative defense, appellant alleged:

'2. That the laws of the State of New Mexico authorize the State of New Mexico Public Service Commission to prescribe reasonable and adequate service regulations and standards of service rendered or to be rendered by any utility.

'3. That the Public Service Commission of the State of New Mexico by a regularly adopted order (its General Order No. 2) has provided that utilities shall file rate schedules, and regulations setting forth among other things, the following:

"General Order No. 2

"Section 11:

"* * * Each rate schedule should include the following information and as nearly as possible in the order shown: * * *.

"Conditions: Briefly any general or special conditions, exceptions, limitations or other data, regarding the service or rate applicable to the schedule * * *.

"Section 12:

"* * * The following subjects, and other subjects where necessary should be covered by rules and regulations included in the tariff schedules of all public utilities: * * *.

"Description of Service: Full description of character of service rendered and standards of service maintained * * *."

Appellant's rules numbered 6 and 13 filed and approved by the Public Service Commission, provide:

'6. Continuity of Service: Company will use reasonable diligence to supply steady and continuous service but will not guarantee the service against irregularities or interruptions. Company will not be liable to customer for any damages occasioned by irregularities or interruptions. * * *

'13. Customer's Installation: Customer's Responsibility: Customer shall assume all responsibility on Customer's side of Point of Delivery for service supplied or taken, as well as for the electrical installation, appliances and apparatus used in connection therewith, and shall save Company harmless from any and all claims for injury or damage to persons or property occasioned by or in any way resulting from such service, or the use thereof, on the Customer's side of Point of Delivery.'

At the conclusion of the taking of testimony, but before the court had made formal findings of fact and conclusions of law, and before the entry of judgment, appellee moved and the court permitted appellee to make a trial amendment, alleging as follows:

'4 (a). At all times material hereto the plaintiff and counter-defendant Southwestern Public Service Company owed a duty to its consumers including the defendant and counter-claimant, to furnish electrical energy evenly balanced and uniformly supplied in proper voltage in safe and convenient form in order that damage to appliances consuming such energy would not result.

'4 (b). That the plaintiff and counter-defendant negligently failed to provide electrical energy to the defendant and counter-claimant in the manner above alleged and that the damages incurred as alleged in paragraph 3 were solely and proximately caused by the negligence of the plaintiff and counter- defendant Southwestern Public Service Company, its agents, servants or employees.'

The pertinent provisions of the contract dated September 26, 1952, provide as follows:

'2. The Company will at its own cost build and maintain facilities to serve the Customer's requirements of not less than 356 HP with three (3) phase, sixty (60) cycle electrical energy at approximately 2400 volts. The electrical energy to be supplied hereunder shall be measured at approximately 2400 volts, by standard meter or meters as the Company may select for this purpose, all to be owned and installed by the Company.

'7. The Customer assumes the responsibility of the electric power and energy delivered hereunder after it leaves the Company's lines, and beyond the point of delivery of power and energy hereunder and hereby agrees to protect and save the Company harmless from injury and damage to person or property occasioned by such power and energy beyond the said point of delivery. Unless otherwise provided in this agreement said point of delivery shall be the meter terminals. The Company shall not be liable to the Customer, or any person, by reason of the failure to deliver electrical energy as a result of fire, breakdown, acts of God or any other conditions beyond the control of the Company. The Company does not guarantee that the supply of electrical energy will be free from temporary interruption, and any and all temporary interruptions shall not constitute a breach of this contract, and the Company shall not be liable to the Customer for damage resulting from such temporary interruption, but will use its best efforts to restore the service as soon as is can reasonably do so.'

The trial court made the following findings of fact:

'2. During the year 1957, and at all times material hereto, the defendant-counterclaimant owned and operated a feed processing mill at or near Artesia, Eddy County, New Mexico, which was equipped with numerous electrical appliances including three separate 200 H.P. 60 cycle electric motors which were specified by the manufacturer to be operated by 3 phase electrical energy of 2,300 volts.

'3. That during the year 1957, and at all times material hereto, the defendant-counterclaimant was purchasing electric energy from the plaintiff-counter-defendant under an electric service contract dated September 26, 1952, for operation of the numerous electric appliances incident to its feed processing mill.

'4. For a considerable period of time prior to January 22, 1957, the plaintiff-counter-defendant had permitted certain capacitors to remain in operation on the transmission line leading into the defendant-counterclaimant's mill which had short-circuited, thereby creating a grossly unbalanced voltage provided, and in addition, for a long period of time prior to June 6, 1957, the plaintiff-counter-defendant had permitted its electrical energy, at various times, to exceed the proper voltage and to operate the defendant-counterclaimant's motors at voltages greatly in excess of the manufacturer's recommendations.

'5. That on January 9, 1957, as the direct result of such excessive voltage and unbalanced current conditions theretofore existing, the windings in a 200 H.P. eletric motor located in the suncured Alfalfa Mill were...