Temple Electric Light Co. v. Halliburton

• Decision Date: 22 March 1911
• Citation: 136 S.W. 584
• Parties: TEMPLE ELECTRIC LIGHT CO. v. HALLIBURTON.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

136 S.W. 584

TEMPLE ELECTRIC LIGHT CO. v. HALLIBURTON.^†

Court of Civil Appeals of Texas.

March 22, 1911.

On Motion for Rehearing, April 19, 1911.

Appeal from District Court, Bell County; John D. Robinson, Judge.

Action by Mrs. Minnie Halliburton against the Temple Electric Light Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Harry P. Lawther, W. S. Banks, and W. O. Cox, for appellant. A. L. Curtis and Winbourn Pearce, for appellee.

RICE, J.

On the night of November 29, 1909, in the city of Temple, Geo. W. Halliburton, while attempting to cut a telephone wire running into his house, and which was heavily charged with electricity on account of having come in contact with the wire of the Temple Electric Light Company, was struck and killed by a current of electricity; and his widow, Mrs. Minnie Halliburton, for herself and as next friend for her four minor children, brought this suit against appellant and the Bell County Telephone Company to recover damages therefor.

It was alleged that both the light and phone companies maintained and operated their wires over the streets and alleys of said city, each charged with dangerous and deadly currents of electricity; that the deceased, through contract with the phone company, had installed a telephone in his home. The negligence alleged against the light company consisted in using and maintaining inferior and dangerous wires, insufficiently insulated and fastened to the poles, whereby they were caused to sag and fall across the wire of the telephone company, thereby charging the same with deadly currents of electricity, and in negligently stringing its wires too close to those of the telephone company, as well as not sufficiently tamping, staying, bracing, and guying its posts, and that the telephone company was negligent in maintaining its wires in such loose and careless manner, and in such close proximity to the dangerous and deadly wires of the light company, that the defendants knew, or in the exercise of ordinary care and proper inspection could have known, of the defective and dangerous condition and position of said wires; but, notwithstanding its duty in that behalf, it negligently and carelessly failed and refused to remedy or repair the same. The telephone company failed to answer, but the light company answered by general demurrer, general denial, and by special plea, denying that its wires were inferior or insufficiently insulated by reason of which they sagged and came in contact with the telephone wire, and specially denied that they were placed in too close proximity to said telephone wires, and alleged that its wires were triple braided, weather proof, insulated, standard wires, tightly strung on new sound poles, securely fastened in the ground, etc. And further answered by plea of contributory negligence and assumed risk, and also by cross-action, alleging negligent construction and maintenance of the telephone wires, but for which the accident would not have occurred, and sought to recover judgment against the telephone company in the event plaintiff obtained judgment against it. There was a jury trial resulting in a verdict and judgment in favor of plaintiff in the sum of $14,000.

The principal reasons urged for reversal, both in the brief and argument on hearing, were, first, that the court erred in refusing to grant appellant a continuance to make the telephone company a party; second, that the court erred in not sustaining the motion of appellant to instruct a verdict (a) on the ground that no liability was shown against the defendant, (b) on the ground that deceased was guilty of contributory negligence; third, that the court erred in certain paragraphs of its main charge to the jury; and, fourth, that the court erred in refusing to give certain special instructions requested by appellant, and that the verdict was excessive, all of which will be discussed in the order presented.

When the case was called for trial on the 9th day of February, it appeared that the telephone company had not been served with citation, the party upon whom service was had having on the 3d day of January made affidavit setting up the fact that he was not the agent of the company sued. Whereupon the plaintiff dismissed her suit as to the telephone company, and elected to proceed alone against appellant. Thereupon the latter moved the court to grant it a continuance for the purpose of making the telephone company a party defendant. This was refused, and the action of the court in this respect is assigned as error. As a general rule, there is no contribution between joint tortfeasors, but there are exceptions to the rule which permit it, especially in cases of negligence; and, without undertaking to determine whether appellant by its pleading brings itself in the present case within any of the exceptions to the rule, we think that the motion to continue was properly overruled, because appellant had made no effort, prior to this time, to make the telephone company a party defendant. The telephone company was not a necessary party to this suit, and to have granted the motion would have delayed plaintiff's suit. Therefore we think that without a showing of diligence on the part of appellant to make the telephone company a party this motion to continue was not well taken. It has been held that, while a sheriff may have his indemnity bondsmen made parties, he must do this in ample time, so as not to delay the case against himself. See Stiles v. Hill, Fontaine & Co., 62 Tex. 429. In Kirby v. Estill, 75 Tex. 484, 12 S. W. 807, it is held that, while a defendant may have his warrantor brought in, the same cannot be done at such time or in such manner as to unreasonably delay the trial of the case.

In the case of City of San Antonio v. Talerico, 98 Tex. 156, 81 S. W. 520, where the suit was brought on account of the default of another, against whom the city might properly have had a cause of action, it was said: "According to the strict rules of the common law, it (the city) could not have brought any other party into this litigation, and could maintain no independent action until the suit had terminated by judgment or it had paid the damages to plaintiff. It is permitted by our laws to bring into the suit against it the party whom it seeks to hold liable as indemnitor, in order that protection may be given to it by the same judgment that fixes its liability. In bringing in another party, it has no right to delay the suit of the plaintiff, to which such other party is not essential, and it is not at all necessary that the plaintiff's rights should be further involved in the litigation between the two defendants."

We see no reason why the rule above announced will not apply in the case at bar. Notwithstanding the fact that the plaintiff in this suit had brought her action against both defendants, still we think she had the right at any time to dismiss either and proceed against the other, even though service may have been perfected as against the one dismissed; and the other party, it seems to us, would have no just grounds of complaint, since it had failed to take affirmative action in due time to bring its codefendant into the case, because it must be held chargeable with the knowledge of plaintiff's right to so dismiss the proceedings, especially where no service had been obtained against its codefendant, for which reasons we overrule this assignment.

Upon the close of plaintiff's evidence in chief, appellant moved the court to instruct a verdict in its favor, on the ground that there was nothing in the evidence showing, or tending to show, that it was guilty of any negligence in causing the death of the deceased, either in the quality, character, or kind of its equipment, use and maintenance thereof. While it is true that the evidence showed that appellant had recently erected its poles, that the same were new, sound, and firmly placed in the ground, that its wires were of the best in use and were properly strung, yet it is shown that at the time these poles were erected and wires strung the telephone company had its service or drop wire running from a post on the east side of the alley into the house of the deceased, and had been for some months prior thereto so maintaining it, and that the light company erected its poles and strung its wires on the west side of the alley and across this drop or service wire of the telephone company. There was testimony on the part of the plaintiff that these wires of the light company were within six inches of the telephone wire, and that it is not safe to place such wires so close to each other. It was further shown that the light company's wire on the night in question had come loose from the knob on the cross-arms and had fallen upon or across the telephone wire, and it further appeared that, if it had been properly fastened, this would not likely have occurred; that at the point of contact a hole was made in the insulation of the light wire, whereby the telephone wire became charged with electricity. The telephone wire ordinarily carried a voltage of only about 40, while the light company's wire usually carried a voltage of about 2,250. On the night in question the wind was blowing strongly from the northwest, and it had been raining and the ground was flooded with water. The deceased came home about 7:30 p. m.; and it seems that there had been trouble with the phone during the day, and he had been unable to communicate with his wife. Upon his arrival, after ascertaining that his wife had tried to get him over the phone and had failed to do so, he went to the phone for the purpose of seeing whether it was all right. Receiving a slight shock, he hung up the receiver, saying that there must be something wrong with the wire under the house, and went outside to see about it. He immediately returned, saying that the wire would set the house on fire. It was then emitting sparks, and he took up the pliers...