Ward v. LaCreek Elec. Ass'n

• Decision Date: 19 December 1968
• Docket Number: No. 10466--,10466--
• Citation: 83 S.D. 584,163 N.W.2d 344
• Parties: Hazel WARD, Plaintiff and Respondent, v. LaCREEK ELECTRIC ASSOCIATION, Incorporated, Defendant and Appellant. r--CSH.
• Court: South Dakota Supreme Court

Page 344

163 N.W.2d 344

83 S.D. 584

Hazel WARD, Plaintiff and Respondent, v. LaCREEK ELECTRIC ASSOCIATION, Incorporated, Defendant and Appellant.

No. 10466--r--CSH.

Supreme Court of South Dakota.

Dec. 19, 1968.

Martens, Goldsmith, May & Porter, Pierre, for defendant and appellant.

Bangs, McCullen, Butler & Foye, Rapid City, for plaintiff and respondent.

HANSON, Presiding Judge.

This is an action for water damage to the interior of a ranch house allegedly caused by defendant LaCreek Rural Electric Association's unauthorized or negligent acts. The jury awarded $10,080 damages and defendant appeals alleging numerous errors. Only those relating to (1) the sufficiency of the evidence to establish negligence, (2) standard of care for electrical companies, and (3) the measure of damages for injury to real property need be discussed.

Plaintiff, Hazel Ward, owns a 2,000 acre ranch located 17 miles south of Martin, South Dakota. She lived on the ranch for 34 years in a one story dwelling constructed in 1933. The basement was finished and contained, among other appliances, an electrically operated pump which pumped water from a nearby well to pipes throughout the house. Plaintiff owned all wiring in the house including a control panel in the basement and the wiring from the house to a pole in the ranch yard.

The ranch house and outbuildings had been served by the defendant rural electric cooperative since 1955. It brought electricity to the yard pole on which was a meter and a breaker box with a manual switch. This electrical equipment was owned by defendant. When the switch on the breaker box was in a 'down' or 'off' position no electricity could enter the lines owned by plaintiff leading to the house and other outbuildings.

Having obtained a teaching position plaintiff moved to Martin in September 1965. Preparatory to leaving the ranch she closed the house for the winter. As part of this process she notified defendant she was moving to Martin and no longer desired electrical service. She then turned the electricity off at the yard pole by pulling the breaker switch down or on 'off' position. She also drained the water from the pipes in the house by opening the faucets on the main floor and in the basement. They were left open. After plaintiff moved to town defendant disconnected its line at the road and removed the meter from the yard pole.

Later on plaintiff became concerned about not having electricity available at the ranch to activate the water pump in the event of fire. She phoned defendant's office seeking advice in this regard and talked two or three times with Ruth Andrews, an office employee. Mrs. Ward expressed her desire to have electricity available in case of fire. If it was all right with defendant, she thought it would be better to shut the electricity off at the yard pole so mice couldn't get at the wires and start a fire. It was suggested by defendant's employee that Mrs. Ward could shut off the breakers at the yard pole and could wire or padlock the breaker box on the yard pole. Following these conversations Mrs. Ward sent a check to have electric service resumed. On November 10th defendant's employees reconnected and reinstalled the line from the road to the ranch yard pole. The breaker switch on the yard pole was left 'off' so no electricity could enter the line running from the pole to the house.

As part of an improvement or modernization program defendant's employees came to plaintiff's ranch on December 31st and installed a new transformer without notice to Mrs. Ward. The new transformer contained automatic circuit breakers. Therefore, the old breakers were removed from the breaker box on the yard pole. When removed the breaker switch was in 'off' position. Although defendant's truck was equipped with two-way radio the employees did not contact their office for information or instructions before proceeding to install the new transformer and reconnecting the meter. The jury could reasonably infer this energized the line running from the yard pole to the house which in turn activated the water pump in the basement causing water to flow from the open faucets. Also the jury could reasonably infer this condition persisted from December 31, 1965 to February 6, 1966 when discovered by plaintiff's daughter. The water saturated and dampened the whole house causing warping, rusting and mildewing.

Considered in the light most favorable to plaintiff there is sufficient evidence to establish jury issues as to defendant's negligence and its proximate cause of the damages. Its liability was not contingent upon foreseeability of the 'extent of the harm or the manner in which it occurred.' Restatement, Torts § 435; Rikansrud v. City of Canton, 79 S.D. 592, 116 N.W.2d 234; Loonan Lumber Company v. Wannamaker, 81 S.D. 51, 131 N.W.2d 78. The duty to foresee a risk of harm is dependent upon all the surrounding facts and circumstances and may require further investigation or inquiry before action is taken. As pointed out in Comment J, Restatement 2d, Torts § 289:

'It is not necessary that the actor should realize that the circumstances surrounding him are such as to make his conduct likely to cause harm to another. It is enough that he should realize that his perception of the surrounding circumstances is so imperfect that the safety or danger of his act depends upon circumstances which at the moment he neither does nor can perceive. In such case it is negligent for him to act if a reasonable man would recognize the necessity of making further investigation. If he acts without such investigation, he must, as a reasonable man, realize that his act involves a risk depending upon the character of the unknown surroundings. There may be situations in which the importance of immediate action prevents the risk from being unreasonable, as where an act is done in an emergency which affords no time for investigation and is reasonably necessary for the protection of some valuable interest of the actor or of a third person.'

In the present action, defendant was charged with knowledge that plaintiff had closed her ranch house for the winter; had been granted permission to terminate electric service at the yard pole; and had permission to use the breaker switch on the yard pole for this purpose. It was turned 'off' when she closed her house. It was left 'off' when service was resumed in November. It was 'off' when defendant's employees came to the ranch on December 31st to install a new transformer. Their truck was equipped with a two-way radio. They were not faced with an emergency. Nevertheless, they proceeded to install the new transformer and remove the breaker switch without seeking information or instructions from the home office. Their precipitate action without further investigation involved a risk of unknown harm which was assumed and for which defendant could be found responsible.

It is also contended the trial court erred in instructing the jury that the distribution of electrical energy is a highly dangerous activity and 'one engaged in such an activity is under a duty to exercise a high degree of care commensurate with the activity to prevent injury to persons or property from its use.' In Roster v. Inter-State Power Co., 58 S.D. 521, 237 N.W. 738, this court held that in the distribution of electricity an electrical company is charged with 'the highest degree of care that skill and vigilance can suggest, consistent with the practical conduct of the business.' See also De Gooyer v. Harkness, 70 S.D. 26, 13 N.W.2d 815, applying the same standard of care to an individual.

Defendant suggests the court should have instructed it 'was the duty of defendant to use ordinary care under all the circumstances consistent with the practical operation of its business.' This is actually a distinction without a difference 'for the ordinary care required under the circumstances is, in its practical application and in view of the highly dangerous character of electricity, a relatively high degree of care.' 26 Am.Jur.2d, Electricity, Gas, and Steam, § 42, p. 248. The same conclusion is expressed in Hale v. Montana-Dakota Utilities Co., 8 Cir., 192 F.2d 274 as follows:

'Electricity is regarded as a dangerous agency and the degree of care required to be used in its production and distribution is the highest degree of care that skill and vigilance can suggest consistent with the practical conduct of the business. De Gooyer v. Harkness, 70 S.D. 26, 13 N.W.2d 815; Roster v. Inter-State Power Co., 58 S.D. 521, 237 N.W. 738. The degree of care resting upon such companies is variously expressed. Such companies are bound to use reasonable care in the construction and maintenance of their lines which means such care as a reasonable man would use under the circumstances. The degree of care which will satisfy this requirement varies with the danger which will be incurred by negligence and must be commensurate with the danger involved and that may otherwise be expressed as the utmost care and prudence consistent with the practical operation of its plant. Interstate Power Co. v. Thomas, 8 Cir., 51 F.2d 964, 84 A.L.R. 681; Greenwald v. Northern States Power Co., ...