Williams v. Pacific Gas & Elec. Co.

• Decision Date: 10 June 1960
• Citation: 181 Cal.App.2d 691,5 Cal.Rptr. 585
• Parties: Melvin L. WILLIAMS, Plaintiff and Respondent. v. PACIFIC GAS AND ELECTRIC COMPANY, a Corporation, Defendant and Appellant. Civ. 9623.
• Court: California Court of Appeals Court of Appeals

Page 585

5 Cal.Rptr. 585

181 Cal.App.2d 691

Melvin L. WILLIAMS, Plaintiff and Respondent. v. PACIFIC GAS AND ELECTRIC COMPANY, a Corporation, Defendant and Appellant.

Civ. 9623.

District Court of Appeal, Third District, California.

June 10, 1960.

Rehearing Denied July 6, 1960.

Hearing Denied Aug. 3, 1960.

Robert H. Gerdes, John J. Briare, R. A. Raftery, Henry J. LaPlante, San Francisco, and John E. Griffin, of Griffin, Conway & Jones, Modesto, for appellant.

John J. Healy, Healy & Walcom, Robert K. Barber, San Francisco, and Francis W. Halley, Zeff, Halley & Price, Modesto, for respondent.

SCHOTTKY, Justice.

The Pacific Gas and Electric Company has appealed from an adverse judgment in the amount of $190,000 in an action brought by Melvin L. Williams to recover damages for injuries incurred when the current from a high-tension line passed through his body.

For many years preceding this accident the West Stanislaus County Rural Fire Protection District maintained a lookout station on Mount Oso. The station was served by a one-wire telephone system owned by the district. The Evans Telephone Company by agreement used this line to service several customers, including the Gerber Ranch. Prior to the accident the Pacific Telephone and Telegraph Company made plans to construct a micro-wave relay station on Mount Oso. To provide power for the station the Pacific Gas and Electric Company extended its power line to the area. It obtained an easement from Paul Gerber to run its line over the Gerber Ranch. The high-tension power line rendered the one-wire telephone system inoperative because of inductive interference. To correct the condition required metallicizing the circuit, or, in other words, constructing a two-wire system. Shortly before the accident the Pacific Gas and Electric Company agreed to provide Evans Telephone Company with a second length of wire and other related material necessary to metallicize the system. There was a discussion relative to Evans Telephone Company contacting the Pacific Gas and Electric Company's poles though no formal agreement was entered into. It is evident from the record however that the Pacific Gas and Electric Company knew that Evans was to do the work of metallicizing the fire district's line, and it may be implied that Evans Telephone Company had permission of the Pacific Gas and Electric Company to contact the poles. The portion of the pole contacted had been reserved to the Pacific Telephone and Telegraph Company.

A week before the accident the Evans Telephone Company commenced the work. Two of its employees, Melvin Williams and Raymond Chandler, installed cross-arms on the poles and were in the process of removing the telephone line from the old poles and moving it to the new when the accident occurred. On the day of the accident the men were working in hilly country near the Gerber Ranch. They had been taking line off the old poles and moving it to the power line and draping it over the new crossarms on the power poles. While moving line from the old poles to a pole referred to as pole 1, the telephone wire contacted the high-tension wire at pole 5. Just prior to the accident Melvin Williams was driving a truck to which the old line was attached, and apparently while so doing the telephone wire touched one of the jumper or transposition wires at pole 5. Melvin Williams was unable to testify as to the events which occurred. He alleged that he was unable to remember what had occurred the day of the accident. He had worked for the Evans Telephone Company about 18 months prior to the time of the accident. He was at the time 19 years of age. He had only a grammar school education. He had never worked in hilly country before. He had never taken any courses in electricity, and he had never been given any pamphlets by Evans Telephone Company on safety methods.

The Pacific Gas and Electric Company, hereinafter referred to as the appellant, first contends that there is no evidence in the record from which it may be inferred that it was negligent. It is appellant's contention that respondent was a trespasser, or at most a licensee, and therefore no duty to respondent was breached. It is therefore necessary to determine the status of respondent Williams at the time of the accident.

When the appellant received the easement to run its power line to the microwave relay station on Mount Oso, it promised according to the testimony of Paul Gerber, the grantor of the easement, that it would remedy any inductive interference to the telephone line running to the Gerber Ranch which was caused by the installation of the power line. After the line was installed the general manager of Evans Telephone Company notified the appellant of the inductive interference and of the fact that a fire district owned the line. Evans Telephone Company was then informed that the Stockton Division Office of appellant would get in touch with the proper official of the fire district to make arrangements for the shipment of the necessary materials to metallicize the line and to discuss the matter of contacting the poles of appellant. A letter from the engineer of communications to the Stockton division contained the following:

'* * * It is requested that you obtain a list of materials and shipping instructions from * * * the Fire District at Patterson, so that the materials can be properly shipped. It would also be advisable that this telephone line contact our poles rather than being overbuilt with random crossings, as shown in the sketch that was provided to this office.

'Inasmuch as we have overbuilt the telephone line and that there is no other desirable route for our power circuit, it is felt that free contact should be given the fire district for this section of the line.'

After receiving the letter from the appellant, and after contacting the fire district, Evans Telephone Company ordered its employees, Raymond Chandler and respondent, to install crossarms on the appellant's poles and to transfer the telephone line from the old poles to the new; to lay the wire over the crossarms in a slack position; and to pull the telephone line just enough to give clearance where it crossed the road. No formal assent had been given to Evans Telephone Company to commence the work, but it is clear from the evidence that all parties knew that the work was to be doen and that the appellant had granted permission to contact its poles. Respondent was engaged in trasferring the line when the accident occurred.

We believe it is fairly inferable from the record that respondent was at the very least an invitee. There are two tests for determining whether or not a person is an invitee. One, which may be called the 'economic benefit' test, proceeds on the assumption that affirmative obligations are imposed on people only in return for some consideration or benefit. (See 2 Harper & James on Torts, p. 1478.) This test can be applied here in determining that respondent was at least an invitee. Paul Gerber testified that when he granted the easement to the appellant it promised that it would remedy any inductive interference on the line. Evans Telephone Company was in the process of performing the task and its accomplishment would fulfill an obligation of the appellant. This would be a benefit within the rule stated.

Appellant contends, however, that Mr. Gerber's testimony can not be used to find a benefit to it since the deed granting the easement was silent on the matter and to use the evidence would violate the parol evidence rule. It is well established that material and relevant evidence that is incompetent and inadmissible under an exclusionary rule will support a judgment if offered and received without objection. (McCormick on Evidence, p. 126; Witkin, California Evidence, p. 751.) The rule is applicable to evidence violating the parol evidence rule. Pao Ch'en Lee v. Gregoriou, 50 Cal.2d 502, 326 P.2d 135. The evidence of Mr. Gerber can be used to establish the obligation of appellant and accordingly the benefit to it.

Appellant also contends that Evans Telephone Company and its employees were trespassers because of a written agreement entered into between the appellant and the telephone company in 1938 whereby Evans Telephone Company agreed it would not contact any of appellant's poles without written permission. We think it is a sufficient answer to this contention that the parties were not acting under the written agreement in this operation, and its provisions were not applicable to the instant case.

Appellant also contends that the court erred in refusing to instruct the jury that if respondent exceeded the scope of his invitation he became a trespasser. The instruction was properly refused. Respondent was in the process of moving the telephone line from the old poles to the new. This was part of the very task he had to perform to correct the inductive interference. The mere fact that he may have pulled the wire which in turn contacted the high-tension wire would not make him a trespasser. Of course appellant did not want him to contact its wires, but if he did so accidentally while performing his work he would not thereby become a trespasser.

Respondent contends that appellant with full knowledge that the work of transferring the telephone line from the old set of poles onto its poles in order to make a two-way circuit to reduce or eliminate inductive interference was in progress nevertheless failed:

(1) to erect mechanical barriers to prevent physical contact between the telephone wire and the transposition wire at pole 5 as required by 2603, Electrical Safety Orders (Title 8, art. 37, Cal.Adm.Code);

(2) to de-energize the newly erected high power distribution line which could have been done easily at the disconnect switches as required by 2603, Electrical Safety Orders;

(3) to remove the high voltage conductors as required by 2603, Electrical Safety Orders;

(4) to insulate the transposition wire...