50 So. 544 | La. | 1909
Lead Opinion
Statement of the Case.
Plaintiffs, the widow and children of Nicholas Burke, allege that the New Orleans & Carrollton Railroad, Light & Power Company is justly indebted unto petitioners in the full sum of $26,785.53, legal interest from judicial demand untii paid, for this, to wit:
“That your petitioners are, and were on the 18th day of February, 1907, the owners of the real estate and improvements described by the municipal number of 5809 St. Charles avenue, at the entrance of what is known as Rosa Park, in this city; that the improvements of said property consisted of a two-story frame building and attic, with appurtenances, which premises are used as a residence by all of your petitioners, except the said William P. Burke. That the New Orleans, & Carrollton Railroad, Light & Power Company is, and was on the 18th day of February, 1907, engaged in furnishing electric power for lighting and other purposes in this city; that on said date, and for a long time prior thereto, said company was furnishing and did furnish electric power for the lighting of petitioners’ aforesaid premises; that said premises were properly wired, and were installed with all proper customary and usual electric appliances and devices for the lighting thereof by electricity, in accordance with the rules and regulations governing such matters; and that the electric current for lighting purposes was carried in said premises by service wires connected with the said company’s main line of wires, which ran along the river side of the neutr.al grounds of St. Charles avenue.
' “That on the 18th day of February, 1907, and in the forenoon thereof, the said New Orleans & Carrollton Railroad, Light & Power Company, its agents and employés, were engaged in removing an old decayed pole supporting its main line of wires running along the neutral grounds on St. Charles avenue, in front of petitioners’ premises, and in replacing said old pole by and with a new pole to support said wires, and that, in changing and substituting said poles, the said company, its agents, and employés, cut and unfastened from its said main line of wires the service wires which carried electric current from said main line unto the aforesaid residence of petitioners; that, while engaged in said work, the said company, its agents and employés, carelessly and negligently permitted the service wires hereinabove referred to, which led into petitioners’ residence, to come into contact with a wire or wires carrying electric current of a greater and higher pressure than the wires and electrical fixtures in the said premises were designed to and could carry.
“That, in consequence of said service wires leading to petitioners’ said premises being permitted to come into contact with a wire or wires carrying a greater and higher pressure 'than the electrical service in said premises was designed to and could carry, an electric current of greater pressure was carried into said premises, with the result that the insulation, fixtures, and appliances of said premises broke down, arching was established in said wires, fixtures, and appliances, and said premises caught and were thereby set on fire.
“That said fire spread rapidly throughout said building, and was not extinguished until said building had been almost totally destroyed. That the damage to said building, resulting from said fire, was and is the sum of $16,831.
“That there were contained in said premises, at the time of said fire, certain household articles and furnishings, ornaments, etc., more particularly itemized on the statement hereto annexed and made part hereof, and marked ‘Exhibit A,’ which articles were and are valued at the sum of $8,800.30, and that said articles were completely destroyed by and in said fire.
“That certain other articles contained in said building at the time of said fire, and appearing on the itemized statement hereto annexed and made part hereof and marked ‘Exhibit B,’ were damaged in and by said fire to the extent of $1,154.23.
“That petitioners were the owners, either separately or together, of all of said movable property contained in said premises and destroyed or damaged by said fire, and that petitioners have transferred and assigned to each other, and are now the owners of all claims, demands, and cause of action which they and each of them have or had against the defendant company, or any other person or corporation, for the damage by them, or each of them, sustained in consequence of the destruction and damage to said movable property hereinabove*565 described, as will more fully appear by reference to the assignment which is hereto annexed and made part hereof.
“That the cause of said fire was, immediately after its occurrence, examined into by the fire marshal of this city, charged by law with duty, and that said fire marshal found, upon concluding said investigation, that said fire was caused and originated as hereinabove stated.
“In view of the premises, petitioners pray that said New Orleans & Oarrollton Railroad, Light & Power Company be cited; that there be judgment in favor of petitioners and against the said New Orleans & Oarrollton Railroad, Light & Power Company in the sum of $26,-785.53, with legal interest from judicial demand, and costs of suit.”
On February 17, 1908, defendant, with leave of court, answered and filed an amended and supplemental answer. It reiterated its original answer, save as might thereafter be admitted. Further answering, defendant averred that, if the damages alleged were caused by the acts attributed to defendant in the petition (which acts and alleged results are denied), in that event damages were contributed to by the negligence of plaintiffs in having the wiring and fixtures in the house in bad condition, without which negligence none of the damages alleged could have resulted from any of the acts charged against defendant.
This case came up for trial February 17, 1908, and on February 19, 1908, defendant’s counsel, in open court and in presence of the counsel for plaintiffs, suggesting to the court that at the last hearing testimony was offered on behalf of plaintiffs to the effect that plaintiffs had, prior to institution of this suit, parted with and disposed of a portion of their interest in their alleged claims against the defendant, and further suggesting that said testimony so offered modified the petition in this cause to that extent, that the plaintiffs do not claim and are not seeking to recover for themselves and on their own behalf, as alleged in the petition, the entire amount of claim; and defendant, further stating, in order that its position might be clear, that it will, on its request for charges and elsewhere, whenever may be proper, insist that said modification, while reducing the claim of any of plaintiffs, to the amount of which they have not divested themselves, nor disposed of, yet will not enable said plaintiffs, under the pleadings in this cause, to recover any amount on behalf of any other person, firm, or corporation, and that no other person, firm, or corporation can recover anything in this suit through plaintiffs or otherwise, now moves the court to direct the plaintiffs to declare what amount, if any, they are seeking to recover for themselves and their own interest against this defendant in this suit. This motion was refused by the court.
On February 19, 1908, defendant, without waiving or modifying its pleadings or objections, claimed that the effect of plaintiffs’ testimony described in defendant’s motion made this day, and the effect of the proceedings had upon that motion, was to introduce certain insurance companies named in plaintiffs’ return to said motion as new parties plaintiff; and defendant accordingly pleaded the exception of misjoinder of parties plaintiff between the original plaintiffs and said companies.
Defendant prayed that this exception be maintained, and this suit dismissed, and for any other order or decree which might be proper or necessary. The exception was overruled, and defendant excepted. The case was tried before a jury, which returned in' this case in favor of plaintiff in the sum of $26,783.53, by a vote of 11 to 1 when polled. The court rendered judgment in conformity to the verdict.
Defendant has appealed.
The first question to which we direct our attention is the action of the court in respect to the following special charges requested to be given:
“(1) If you find from the evidence that, prior to the institution of this suit, plaintiffs parted*567 with any portion of their interest in their alleged claim, you cannot, under the law, find a verdict in their favor, except for such amount as was not disposed of. You cannot, under the pleadings in this case, find a verdict in their favor as representing persons or corporations to whom any such interest was transferred, and your verdict must be confined to such amount, if any, as the plaintiffs in their behalf were entitled to recover at the institution of this suit.
“(2) Burden of proof is upon plaintiffs to make out their case, or by a clear preponderance of evidence, and if it is not so proven, on consideration of all the evidence; on both sides, that the alleged fire was not caused in the manner alleged in the petition, and through the fault of the defendant, you should not, under the law, render a verdict in favor of plaintiffs, even though you may not have been able to satisfy yourselves from the evidence as to the cause from which the fire did actually-originate.
“(3) If you find that the fire described in the petition was contributed to by the negligence of the plaintiffs in having the wiring or appliances in the house in a defective or improper condition, you must find for the defendant, even though you may considei' that defendant might have been guilty of fault contributing to the fire.”
The charge given to the jury was substantially as follows:
“Gentlemen of the jury: The question in this case is this: That if you find from the evidence that the defendant, through its fault, caused or permitted its trolley current to enter the house and damage the house and furniture belonging to the plaintiffs, then you should find for the plaintiffs for the amount of such damage; but if you should not be satisfied of this from the evidence you should find for the defendant.' If you should consider from the evi-' dence that the fire did not occur in this way, but occurred through the ordinary current on account of defective wiring or appliances in the house, you should find for the defendant. There is no doubt that a plaintiff may show the defendant’s liability for damages by circumstantial evidence thereby.
“The burden of proof is upon the plaintiffs to make out their case by a clear preponderance of evidence; and if it is not so proven, on consideration of the evidence on both sides, that the alleged fire was caused in the manner alleged in the petition and through the fault of the defendant,' you should not, under the law, render a verdict in favor of plaintiffs, even though you may not have been able to satisfy yourselves, from the evidence, as to the cause from which the fire did actually originate.
“The plaintiff in a civil case is not bound, like the state in a criminal case, to prove the case beyond a reasonable doubt; but the burden is upon the plaintiff to make its case reasonably certain. You must be satisfied by the evidence that the fire was occasioned as alleged by the negligence of the defendant in the manner alleged.
“I refuse the charge numbered 1 asked by the defendant, and I charge you that you are not to consider the question of the alleged interest of the insurance companies in the case, or of plaintiffs having parted with part of their interest; the question being matters of law for the decision of the court in its ruling in this ease, and for the consideration of this court, or of an appellate court, if proceedings thereafter should be taken. Accordingly, if you find' that the damages to the house and furniture alleged in the petition were occasioned by the fault,of the defendant you should find in favor of the plaintiffs for the entire amount of such damages, if you find the amount ’claimed to be correct.”
And at the conclusion of the charge the defendant then and there excepted to the refusal of the court to give the charge numbered 1 in the annexed request for charges, and then and there separately excepted to-the refusal of the court to give, except as above modified, charge numbered 3 in the-annexed request for charges, and the defendant duly reserved its bills of exceptions, and, having presented the same to the counsel for the plaintiffs, now asked the same to be allowed, settled, and filed as of date aforesaid.
Defendants urge, in support of their complaint of the ruling of the court, articles 15 and 172 of the Code of Practice; Church v. Ice Company, 44 La. Ann. 1022, 11 South. 682; Wolf v. New Orleans Tailor-Made Pants Company, 52 La. Ann. 1357, 27 South. 893; Barron v. Jacobs, 38 La. Ann. 370; Willard, Agent, v. Lugenbuhl, 24 La. Ann. 18. The plaintiffs, on the other hand, cite Kennedy v. Oakey, 3 Rob. 404; Succession of Delassize, 8 Rob. 259; Towne v. Cinch, 7 La. Ann. 93; Meyer v. R. R. Co., 35 La. Ann. 897; Smith v. Atlas Steam Cordage Company, 41 La. Ann. 1, 5 South. 413; Chicago, St. Louis & N. O. R. R. Co. v. Pullman Southern Car Co., 139 U. S. 79, 11 Sup. Ct. 490, 35 L. Ed. 97; Southern Bell Telephone & Telegraph Co. v. Watts, 66 Fed. 460, 464, 13 C. C. A. 579; and Southern Railway Co. v. Blunt & Ward (C. C.) 165 Fed. 260.
“It was in proof that at the time of the fire the cars of, the Great Northern & Louisiana were insured for the plaintiffs, that before the commencement of this action the insurance companies paid to it in full settlement of the loss and damage the sum of $19,000, and that this action is prosecuted under a written agreement between the plaintiff and the insurance companies that it should be conducted jointly by their counsel, and the amount recovered by suit, settlement, or compromise equally divided between them.”
It summed up its decision in these words:
“It results that the court was right in holding that the insurance upon the cars and the collection by plaintiff of the insurance money were immaterial matters in this litigation. The action was well brought in the name of the plaintiff, pursuant to its agreement with the insurance companies.”
In the case of Bell Telephone Company v. Watts the court said:
“Where the owner of property which has been destroyed by fire through another’s negligence has been paid a part of his loss by an insurer, who thereby becomes subrogated to the remedies of the assured, an action to recover from the wrongdoer the value of the property destroyed is properly brought in the name of the assured alone, and the insurer is neither a necessary nor a proper party to such action.
^
“It is true that the payment by the insurer works an equitable assignment of the assured’s claim against the wrongdoer; but the wrongful act is indivisible, and gives rise to but one cause of action. The insurer is subrogated only to the remedies-of the assured, and the rule is well settled that the suit is properly brought in the name of the person whose property has been destroyed. If he recovers a sum which, with the amount he has received from the insurers, is more than his whole loss, the excess belongs to the insurers, and he receives it as trustee for them. The wrongdoer is bound to respond in damages for the whole loss to the owner of the property, and how the money recovered is to be distributed does not concern him.”
The exception which the defendant took was that there was a misjoinder of parties; that it was not proper for the Burkes, in one and the same suit brought in their names, to recover that part of the claim which they had not assigned, and for the benefit of their assignee that part also which they had assigned.
Defendant argues the exception of misjoinder as if the insurance companies were “new plaintiffs” thrown into the case after it had been instituted; but we find that they -were never made parties on the record. The Burkes continued throughout the case as sole plaintiffs. On the second day of the trial, counsel for defendant, in open court, on their behalf, filed a motion, asking the court to direct the plaintiffs to declare what amount, if any, they were seeking to recover for themselves against the defendant, to which demand plaintiffs’ counsel replied :
“That they were suing for $26,785.53; that this suit was brought in their own name, and they admitted they had received $18,500 insurance money from the Hibernia and Sun Mutual Insurance Companies; that they had subrogated the insurance companies to their own rights to the extent of the amount received from the insurance companies; that they had agreed with the insurance companies, and were authorized by the insurance companies, to prosecute this suit for the full amount of the loss by fire as alleged in the petition; and that the defendant in the ease was without interest to make the motion.”
Defendant, with knowledge of this condition directly brought home to it, did not claim to have any defenses against the insurance company which would be cut off by the manner in which the suit was brought, nor does it claim now that it has been, in fact, in any way injured. It relies entirely upon the fact itself and the position claimed by it that, as a matter of law, plaintiffs should have been limited in the suit to prosecuting what portion of the original demand remained due to themselves. The effect of this would have been to have required that one single cause of action should be split into a number of actions, each action being by the assignee of a particular portion of the loss. Had the different parties partially interested in the loss brought separate actions, we thinji it can be safely
We now come to the merits of the case. The case comes before this court with a verdict of a jury in favor of plaintiffs on the facts as developed by the evidence, with a judgment of the trial court affirming the correctness of the verdict and the legal questions advanced by the plaintiffs.
Defendant does not, we think, seriously contest the fact that the damage to plaintiffs’ building was caused by electricity which was conveyed to it through the wires of the defendant company attached to it. There was no other electricity brought into the building, other than that through defendant’s wires. Defendant insists that the fire would not have occurred, had the fixtures in plaintiffs’ house been such as it (defendant) was entitled to require they should have been. Those fixtures had been in use for years before the fire, without injury or loss. They were accepted by defendant as sufficient. Had anything been wrong about them, defendant should have ascertained the fact by inspection and examination. Householders know nothing whatever of ■ electricity, nor what the requirements called for to insure safety. Defendant is engaged in that particular business, and supposed to be informed fully as to what is needed in the premises. If the fixtures having been used for years without any accident, and on a particular day a> fire develops in the dwelling by reason of the electricity conveyed into it by wires, some exceptional condition must have arisen on that day. The evidence in the, case satisfied the jury and the trial judge that the fire was due to an increased current having been passed through the wires on that day — an unusual • increase, which the arrangements in the house were not prepared to meet, through the fault of the defendant company.
Mr. Black, an expert witness on behalf of the defendant, advances a theory as to the origin of the fire which we think assumes as its premises too many unseen, unascertained, and unknown facts to be accepted as correct.
We do not feel justified in reversing the conclusions reached by the jury and the trial judge.
For the reasons assigned, the judgment is affirmed.
Rehearing
On Rehearing.
The majority of the court, adhering to the view that plaintiffs are entitled to prosecute this suit in their own names for the recovery of the whole amount alleged to be due, but entertaining some doubt upon the questions of fact upon which the case turns, a rehearing was granted for the further consideration of these questions, and the present inquiry will be confined thereto, although the writer of this opinion still holds to the view that, under the law regulating practice in this state, whatever may be the rule elsewhere, plaintiffs have no standing to prosecute in their own names a suit for the recovery of the amount which has already been paid them by the insurance companies, and to their right to recover which they had subrogated those companies. Proceeding, now, to the matter in hand, plaintiffs allege that said premises (referring to their house) “were properly wired,” etc., for lighting, and that the fire which damaged it was caused by the negligence of defendant’s employés in permitting the service wires, which they were removing, to come in contact with wires carrying an electric current
Considering, again, the testimony bearing upon the first of’these allegations, we find that Douglas, plaintiffs’ expert, testifies that the lighting appliances were installed in 1896 (when the house was built), according to the rules then in force ; that about the year 1899 a number of houses in the neighborhood were destroyed, or damaged, by fire, resulting, as we understand the testimony, from electricity carried into them by means of wiring; and that he made another inspection of the house at that time. Being asked whether he made any change in the installations, as the result of the inspection, his answer was:
“We repaired the damage.”
Reed, another expert, called on behalf of the plaintiffs, says:
“I inspected their residence at the time that we had those dreadful fires along St. Charles avenue, about ten years ago. * :s * As .well as I can remember, there was some damage done at that time.”
1-Ie further says that, after the damage was repaired, he made a “Wheatstone bridge test,” and found that “the installation was above the standard.” He adds:
“That was done before the electric current was again connected with the building.”
McConnell, an inspector for the insurance companies and a witness for plaintiffs, testifies that the rules regulating the wiring of buildings have been changed during the past few years; that he was in the house whilst the fire, out of which this litigation arises, was in progress, and that he looked about in order to ascertain how it originated; that he understood that the installation was approved at the time that it was established, but, that it would not be approved to-day, because of changes that have been made in the National Electric Board’s code. Being pressed to specify some of the defects that he found, he mentioned “brass armored conduits,” and said:
“Some of the fixture wiring is smaller than is called for, to-day, on account of safety.”
Mr. Borde, another of plaintiffs’ expert witnesses, also testified that he found brass armored conduits in the installation, and that they are not now allowed in new installations, though the board has not ordered them out of the old installations. Being asked:
“It is not considered safe?”
• — he replied:
“No, sir; not from their [the board’s] point of view.”
Mr. Black, an expert called on behalf of defendant, testified that the installation was not in accordance with the rules in force 10 years ago; that he found a number of defects some of them dangerous, and he proceeded to specify: Absence of solder in joints; lack of proper branch blocks, where the size of the wire changed; the use of a very unsatisfactory form of fuse blocks at the fixtures generally known as bulbs; the use of brass, around conduits, particularly where it comes in contact with grounded pipes; and the absence of tablet boards, for branching the circuits. There was no attempt to rebut the testimony thus given by Mr. Black, and, when considered in connection with that given by plaintiffs’ own witnesses, it seems to us to show that the installation was defective. Considering, also, the testimony bearing upon the charge which plaintiffs make, that defendant’s employes, in removing the service wires which conducted the electricity for lighting purposes into the house in question, “carelessly and negligently” permitted them to come “in contact with a wire, or wires, carrying an electric current of a greater and higher pressure than the wires and electric fixtures in the said premises were designed to, and could carry,” we find as follows: Plaintiffs’ house was situated on (what, for convenience, we shall call) the “north side” of St. Charles avenue,
Rankin, who was paying the wire out by means of the rope, was asked: “Do you know whether the wire ran across the feeder?” And he answered: “No, sir.” It might possibly, and under different circumstances, be supposed that, in answering as he did, the witness meant to say, not that he did not know whether the wire ran across the feeder, but that as a fact the wire did not run across the feeder. Subsequently, however, the same
Dooley was not questioned upon the subject of the possible contact between the service and the feeder wires.
Himes, like Rankin and Conrad, was asked: “Do you know whether- they [the service wires] touched on the" feeder?” And he answered: “No, sir.” He was subsequently asked: “Were those service. wires brought in contact with the main electric light wires in any way?” To which he replied': “No, sir.” But the main electric light wires were not the wires over which the service wires were passed. They wére wires which were strung along the poles, on the south side of the neutral ground.
Coming, now, to Magner, who received the wires, on the north side of the neutral ground, while Rankin paid them out, on the south side, we find that he was asked: “Did you drag that wire over the feeder?” To which he answered: “No, sir.” It may be that, if he had been asked, “Did either of those service wires, while they were being passed over the feeders, come in ■ contact with either of the feeders?” he would have made the same answer; but we have no means of knowing that. We should have supposed that he would have known with certainty whether it was Rankin or some one else who tied the rope to the service wires, and yet, as part of his answer to the question, “Who moved the service wires?” he said, “I think that he tied the rope on the service wires. He had a man on the ground to hold it.” If, however, he was mistaken about Rankin tying the rope to the service wires, and if, as a fact, the man on the ground performed that function, then the ends of the service wires must have been dropped to the ground, with the result that for a time, and at the points where they crossed, they rested on the feeders.
There was a witness called by defendant, named Peter, who was employed to drive the wagon which was used by defendant’s workmen, and who was examined for the purpose of showing that the service wires, after both of them had been drawn over to the north side of the neutral ground, were cut off from the telephone pole,- thrown into
The examination proceeded as follows:
“Do you know what became of the wires, finally? A. Yes; rolled up in a coil and put up alongside of a fence. Q. Did they stand there all day? A. Until a quarter to 12, when they cut them down and Mr. Conrad brought them to the wagon and handed them to mo. Q. Then what did you do? A. When they handed them to me, I put them in the scrap portion of the wagon. Q. What became of them after that? A. I hauled them to the stable, and the next morning I put them in the scrap pile. Q. Do you know whether those wires came in contact with the trolley ? A. No; they didn’t come in contact with the trolley' or the feeder wire. Q. At the time of the fire were there, or not, any wires leading from the trolley across St. Charles avenue? A. No; there were none. Q. Was, or was not, the Burke residence, at the time, connected by feed service wires? A. Not at that time: no. Q. Were there, or were there not, any feed service wires between the telephone pole and the Burke house? A. At the time they were laying on the ground. Q. But, leading from the Burke house and reaching to the telephone pole, were there any? A. No, sir.”
From this examination, it seems to us; to say the least, doubtful whether the witness intended to testify that, whilst the sendee wires were being passed over the feed wires, there was no contact, since his attention had not been directed, by the previous questions, to that particular occasion. Moreover, he had nothing to do with the passing over of the wires. There appears to have been no reason why he should have watched the men who were . engaged in that work; and we should be disposed to doubt, no matter what may have been his intention in testifying, whether he was in a position to know more than they have testified to as to the manner in which the work was done, particularly as he falls into a patent error in saying that, at the time of the .fire, there were no service wires running from the telephone pole to the house; those wires, according to all the witnesses, not having been removed until after the fire was under way. On the whole, upon this branch of the case, our conclusion is that defendant has failed to prove, or to make it probable, that in the process of removing them the service wires leading into plaintiffs’ house were not allowed to come in contact with the feed wires. The evidence tending to show that there was-such contact, and that the fire in question was the result, including the inference which may be drawn from the unsatisfactory testimony given by the men who were handling the wires, is indirect and circumstantial. Mrs. Swarbriek, her sister, Mrs. Douglas, and their hairdresser, Mazura McOue, were sitting in Mrs. Swarbrick’s room between 11:30 and 12 o’clock, when they heard what Mrs. Douglas and Mazura described as a “crash,” and Mrs. Swarbriek as “a terrific noise on the side of the house,” which induced Mrs. Douglas to raise one of the windows and look out into the street. In the course of the examination of the witnesses named, Mrs. Douglas described the noise as a “rumbling or falling sound,” and said that it was above her. And it is argued that it was produced by the introduction, into the lighting installation of the house (by means of contact between the service and feeder wires), of the current carried by the latter. The evidence to the effect that the service wires were cut and removed at or about 10:30" o’clock, and that the noise was not heard until between 11:30 and 12 o’clock, is, however, wholly uncontradicted. Beyond that, we rather infer, from the testimony on the subject, that the noise appeared to the witnesses to come from the outside of the house,, whereas the theory propounded assumes an explosion or “rumbling” within the house-Again, we have expert testimony to the effect that the introduction of the more powerful current of electricity would not produce a “rumbling,” but would produce a “hissing,” sound. We think it possible,' therefore, that the noise referred to has nothing to do with.
It is therefore ordered that the decree heretofore rendered in this case be now reinstated and made the final judgment of the court.
