Taschner v. Iowa Elec. Light & Power Co.

• Decision Date: 17 December 1957
• Docket Number: No. 48219,48219
• Parties: Elsie TASCHNER, Administratrix with Will Annexed of the Estate of Leslie J. Taschner, also known as L. J. Taschner, Appellee, v. IOWA ELECTRIC LIGHT AND POWER COMPANY, a corporation, Appellant. Jean K. TASCHNER, Administratrix of the Estate of Robert L. Taschner, Appellee, v. IOWA ELECTRIC LIGHT AND POWER COMPANY, a corporation, Appellant.
• Court: Iowa Supreme Court

Page 915

86 N.W.2d 915

249 Iowa 673

Elsie TASCHNER, Administratrix with Will Annexed of the Estate of Leslie J. Taschner, also known as L. J. Taschner, Appellee, v. IOWA ELECTRIC LIGHT AND POWER COMPANY, a corporation, Appellant.

Jean K. TASCHNER, Administratrix of the Estate of Robert L. Taschner, Appellee, v. IOWA ELECTRIC LIGHT AND POWER COMPANY, a corporation, Appellant.

No. 48219.

Supreme Court of Iowa.

Dec. 17, 1957.

Frank C. Byers, John F. Gaston, Jr., and Donnelly, Lynch, Lynch & Dallas, Cedar Rapids, for appellant.

W. Howard Smith and Wm. W. Crissman, Cedar Rapids, for appellees.

OLIVER, Justice.

Appellant, Iowa Electric Light and Power Co., which operates electric plants and transmits and distributes electric current, was granted an interlocutory appeal from an order of district court striking certain pleaded defenses, in an action against it brought by Elsie Taschner, administratrix, etc., of the estate of Leslie J. Taschner, deceased, for damages for his alleged wrongful death July 19, 1955, by electrocution, and also in a similar action by Jean K. Taschner, administratrix of the estate of Robert L. Taschner, deceased. The two appeals were ordered consolidated for submission and decision.

The action for the death of Leslie J. Taschner will be considered first. Only Divisions III and V of the petition are here involved. The statement of facts in appellant's brief summarizes the material pleadings as follows:

Plaintiff alleged in Division III that plaintiff's decedent, an employee of Cedar Rapids, Iowa, was electrocuted when a ladder which he was maneuvering, preparatory to painting a dwelling house situated outside of any city or town, came in contact with 7200 volt wires erected and maintained by defendant over and across a public highway running north and south; that said wires ran along and in close proximity to said dwelling, which dwelling was located just west of said highway and fronting thereon.

'That defendant in operating and maintaining said 7200 volt transmission wire as aforesaid was negligent and was and is presumed by law and statute (section 489.15 of the 1954 Code of Iowa [I.C.A.]) to have been negligent at said time and place.'

In Division V plaintiff alleged specific acts of negligence, among which were that the defendant was negligent in:

(1) Maintaining its lines within 100 feet of a private dwelling in violation of section 489.19.

(6) Maintaining an electric transmission wire so as to unnecessarily interfere with the use and maintenance of said dwelling house by the occupant thereof in violation of section 489.17.

(7) Failing to remove and replace said wire which had become unsafe with a new wire, in violation of section 489.18.

(8) Failing to install sufficient devices to automatically shut off electric current through said lines in violation of section 489.18.

To these allegations defendant pleaded (in Division IV of its answer, as amended,) by way of a separate and independent defense that the electric line at the place contacted by decedent was not an electric line of the type and character referred to in Chapter 489, but that the same was erected on premises of the city of Cedar Rapids, Iowa, at its request 'for the sole purpose of conducting electric current from defendant's said transmission line to the airport residence property for the exclusive use of the owner and occupant of said property and was located on said property at the place authorized by the owner thereof;' that airport property was owned and maintained by the city of Cedar Rapids, Iowa, pursuant to Chapter 330 of the Code; that:

'The premises upon which the decedent was working at the time of his electrocution were part of the property owned and used by the City of Cedar Rapids, Iowa, for airport purposes, such portion of said airport property having a dwelling house and machine shed situated thereon and being herein referred to as the airport residence property.'

That decedent, at the time of his death, was employed by said city to paint said dwelling and all acts and occurrences took place on said airport property; that said airport residence property was bounded on the east by the public highway referred to in plaintiff's petition; that to the east of, and parallel to such highway, was defendant's own private right of way upon which defendant's main electric transmission line was located; that from said main line wires extended across said public highway to defendant's own private right of way on said airport property, and were installed pursuant to the authority of section 489.29 and under applicable regulations of the Commerce Commission; that since the enactment of Chapter 489 the Commerce Commission has uniformly construed the same to be inapplicable to purely private lines such as defendant's line, that Chapter 489 applies only to transmission lines outside of cities and towns which are constructed and operated pursuant to a franchise and to lines over which the State Commerce Commission has the power of supervising the construction, maintenance, and operation; that under the facts alleged the Commission would have no such power and neither the commission, the board of supervisors, nor any other tribunal than the airport commission of Cedar Rapids, Iowa, would have any jurisdiction over said line at the place where decedent's electrocution occurred.

Plaintiff's motions to strike Division IV of the answer as amended was sustained on ground 3 of the original motion and on ground 6 of Division 2 of the amended motion which states:

'3. That the Supreme Court of Iowa in the case of Litchford v. Iowa-Illinois Gas & Electric Co., 247 Iowa 947, 75 N.W.2d 346, has held that the applicability of Section 489.15 of the Code and other provisions of Chapter 489, is not limited to electric transmission lines which cross public highways or grounds outside of cities and towns, as provided in Section 489.1 of the Code, and that said provisions were enacted for the protection of and are applicable to persons injured or killed, wherever they may be, by the subtle and dangerous hazards of electrical energy; accordingly, as a matter of law, the matters asserted by defendant in Division IV of its Answer are not defensive to the parts of plaintiff's Petition to which it purports to respond.'

'6. That Section 489.29 of the Code neither expressly nor impliedly relieves defendant from its statutory requirements, duties and obligations in respect to high tension lines, to comply with other Sections of Chapter 489 of the Code, nor does said Section make inapplicable the presumption provided in Sec. 489.15; that Section 489.29 merely authorizes a power company to cross a public highway notwithstanding any other provisions of Chapter 489, where its high tension line is on its own, private right of way on both sides of such highway. That Sec. 489.29 applies only to places where high tension lines cross public highways and not to such lines extending elsewhere.'

The opinion of the trial court stated:

'From Division IV of the answer as amended, it appears that the electrocution of plaintiff's decedent occurred on the premises of the Cedar Rapids Municipal Airport; that the poles and electric wires involved were placed on the property at places designated by the City, to provide electric current for the operation of the Airport; that the wires referred to in plaintiff's petition, allegedly carrying the current which caused the death, were constructed and used for the sole purpose of conducting electric current from defendant's transmission line to the residence property in question, for the exclusive use of the owner and occupants thereof; that the transmission line from which the stub line to the residence ran, was located on defendant's private right of way, and was put across the highway under section 489.29.

'Assuming this factual situation, the primary question presented by the motions is whether the provisions of Chapter 489, Iowa Code, 1954 [I.C.A.], are applicable. The defendant contends they are not, because such chapter applies only to lines constructed and operated thereunder, which are public as distinguished from private lines, and which are constructed under franchise for public use, and over which the State Commerce Commission has jurisdiction. Notwithstanding the force of counsel's arguments in support of this contention, the court is inclined to believe that the rulings herein are controlled by the special concurring opinion in the Litchford case, 247 Iowa 947, 75 N.W.2d 346, under which the Court is required to sustain the motions to strike.

'This opinion, as the court reads it, flatly holds that Section 489.15 applies to a stub line leading to private farm buildings, which sub line has been constructed pursuant to private contract with the farmer. * * * It would seem that since electric service to a private farm would be for a private purpose, that the right of eminent domain or condemnation could not have been vested in the Company to construct the stub or extension line. Thus it seems to the Court that the situation in the Litchford case and in the one at bar are parallel in that each involves a stub line erected for a private purpose. The fact that in the Litchford case the main transmission line was located under a franchise, and in the instant case upon private right of way, would not seem to constitute a material distinction. We may grant that the State Commerce Commission has no jurisdiction over the stub line in question. If not, it likewise has no jurisdiction over the stub line in the Litchford case. We may further grant that the high line in question was put across the highway under Section 489.29. As the Court reads this section, it merely means that the defendant would need no franchise to cross the highway under the applicable situation, so long as it followed the regulations of the State Commerce Commission in doing so. If there is any distinction from the fact...