Tennessee Elec. Power Co. v. Sims

• Decision Date: 03 July 1937
• Docket Number: 2.
• Citation: 108 S.W.2d 801,21 Tenn.App. 233
• Parties: TENNESSEE ELECTRIC POWER CO. v. SIMS.
• Court: Tennessee Court of Appeals

108 S.W.2d 801

21 Tenn.App. 233

TENNESSEE ELECTRIC POWER CO. v. SIMS.

No. 2.

Court of Appeals of Tennessee, Eastern Section.

July 3, 1937

Certiorari Denied by Supreme Court October 2, 1937.

Appeal in Error from Circuit Court, Scott County; H. B. Brown Judge.

Suit for damages by G. B. Sims against the Tennessee Electric Power Company. Judgment on a verdict for plaintiff, and defendant prosecutes appeal in error.

Assignment of error sustained, motion for peremptory instruction allowed, and suit dismissed.

Brown & Spurlock, of Chattanooga, for plaintiff in error.

Lee M Jeffers, of Oakdale, and H. K. Pemberton, of Huntsville, for defendant in error.

AILOR Judge.

This is a suit for damages for the loss of household furniture resulting from the burning of the house in which plaintiff below, defendant in error here, lived. The action is based upon alleged negligence of defendant below, plaintiff in error here, in the maintenance of its wiring for supplying electric current for the use of plaintiff. The particular charges of negligence will be referred to in connection with a treatment of the various issues raised.

The proven facts may be summarized in time sequence as follows First, plaintiff's family experienced difficulty with radio reception over an extended period of time; second, it was concluded that this interference with radio reception resulted from some defect in the electric wiring of the house and defendant company was repeatedly notified of this fact; third, the house in which plaintiff and his family lived caught fire and burned down.

Upon the trial of the cause defendant made a motion for a directed verdict at the close of plaintiff's proof, and also at the close of all of the proof. This motion was denied, and the jury returned a verdict for $1,500. Motion for new trial was denied, and an appeal in error has been prosecuted to this court. It is insisted here that there was no evidence to carry the case to the jury and no evidence to support the verdict of the jury.

The declaration contained a single count. After setting up the fact that plaintiff was supplied with electrical current by defendant, the declaration averred negligence in the language following:

"Plaintiff further avers that the wiring leading from his residence to which defendant attached its meter was in a faulty condition, and that the defendant or its agents who installed the meter well knew this fact or should have known it, nevertheless, said defendant by its agents did connect its meter to the wiring and forced its high powered voltage current into the house of the plaintiff, thereby, causing the damages to the plaintiff herein complained of."

The above constituted the only specific charge of negligence in the declaration, though it did contain certain averments as to the duty of defendant, which was to the effect that it owed the duty to maintain its electrical system in such condition and operate it in such manner as would leave the home of plaintiff reasonably safe, and that it had failed to discharge this duty.

In passing upon motion for peremptory instructions the trial judge indicated that he would have sustained same, but for the testimony of the wife of plaintiff. Her testimony, which appears to have been given considerable weight by the trial judge, is rather brief, and we quote the most material portions of it. After she had related the facts about a brief visit to her neighbors, she was asked if she noticed any sign of fire on her return, to which she answered:

"I noticed the smoke up around the roof of the house a little smoke.

"Q. Inside or outside? A. Well, when I first noticed, it was just under the roof of the house around, just around, the smoke looked something like a fog.

"Q. Where was that, what part of the house? A. It was all around the house when I noticed the fog like around the house, I thought it was from the rain because it had been raining. ***

"Q. All right, when you entered the house what did you notice if anything out of the ordinary? A. When I ran in the house I tried to go in the kitchen to see where the fire was, but I could not get any further than the breakfast room, and I saw the fire then coming through the wall over the meter and over the frigidaire, you see, the back of the frigidaire.

"Q. Of course, you could not see the meter. Go ahead? A. The frigidaire was in the breakfast room, the back of this way and the back of the stove this way (illustrating).

"Q. Yes? A. Well, the meter was on the wall this way and it was over the meter, going through the wall, a blaze about the size of a water bucket.

"Q. Inside? A. Yes, sir; inside of the breakfast room.

"Q. And from around from where the meter was? A. Yes sir.

Both Mr. and Mrs. Sims testify that they made numerous complaints to the electric company of trouble with their radio reception, and they insist that they gave notice of trouble with the wiring. But in only two instances does it appear as to what specific defects they complained of. In one instance some trouble had developed in one of the drop cords, that is, the wiring suspended from the ceiling to the light fixture. This trouble was remedied by plaintiff himself. The other specific trouble reported to the electric company was in one of the burners or heating units of the electric stove. An inspector responded to this notice, and informed the wife of plaintiff that it would be necessary to replace the old unit with a new one as the old one was burned out.

It is earnestly insisted on behalf of plaintiff that this evidence makes out a case of culpable negligence against defendant. While it is just as earnestly insisted on behalf of defendant that there is no evidence of culpable negligence upon which a verdict and judgment could be based. Plaintiff insists that the proof establishes the fact that the fire was caused by misplaced electricity, and that the rule of res ipsa loquitur applies. While the defendant insists that it is not shown that the fire resulted from electrical sparks or misplaced electricity, and, therefore, the jury would not be privileged to infer that it resulted from any negligence on its part.

Electricity has been described as being potentially the most dangerous of the utilities commonly used today, lurking unsuspectingly in the simple and harmless wire and giving no warning of its presence. And in the location of its wires an electric company has been held obligated to either insulate its wires or place them beyond the range of persons rightfully using highways and other public places, and to exercise the utmost care to keep them in a safe condition. Geismann v. Mo.-Edison Electric Co., 173 Mo. 654, 73 S.W. 654.

The substance of the rule laid down in the above case seems to be that almost any harm from electricity which could humanly have been avoided would render the company liable in damages. This rule seems to have followed the development of devices capable of indicating trouble on lines the instant they develop. In ...