*1 deceased, ’Dea, pending O heirs to the Estate of Michael F. said court. Sep- rehearing denied application
Petitioners’ for a 25, tember 1941. Aug. 29, No. 5444. In Bank. 1941.]
[Sac. (a QUARTZ IRELAN-YUBA MINING COMPANY GOLD PA Corporation) Appellants, al., et Plaintiffs and (a Corpora CIFIC GAS & ELECTRIC COMPANY tion) et al., Appellant; THE Defendant and SOCORRO MINES, Respond (a Corporation), INCORPORATED ent. *3 Joseph Aleck, Jr., P. Maxfield, for J. Just and A.
Wm. M. Appellants. and Plaintiffs Spaulding and J. Briare for W. H. John Straub,
Thos. J. Appellant. and Defendant Kelly Lynne and for E. Harber Harber, Clinton
&White Respondent. judgment entered on Plaintiffs recovered
CARTER, J. defendant, against damages jury of a for verdict by them the loss suffered Company for the Electric &Gas alleged property by fire to their of the destruction result by have been negligence caused The defendants. returned verdict appellant, a defendant and Company, plaintiff aggre- Electric in favor of each gating $20,000. slightly in excess the sum No verdict respect was defendant, returned in to The Socorro Incorporated, Mines, Inc., plain- also known as O’Brien tiffs’ motion a for retrial or new trial as to that defendant denied; plaintiffs appeal from that order of denial. De- fendant, Company, Pacific Gas & Electric hereinafter referred appellant, appeals to as from the judgment entered on the verdict against it. The action was dismissed as to all other except Mining Company, defendants the Croesus Gold a non- granted suit having been the latter. Plaintiffs in their complaint charged negligently operating defendants with so power energy escaped and maintaining a line that electric spread therefrom destroyed kindled fire personal property belonging plaintiffs. real and County The rural area Sierra at the scene of the fire in question mountainous and timbered. owns a power Alleghany, at the substation town known as the Alleghany substation, power from which it distributes electric various consumers. One distribution line known as ‘‘ ’’ Line, the Alleghany-Spanish by appellant, owned Mine ex- Spanish tends from substation Mine. From a three-quarters line about of a mile from Plumbago Mine, property plaintiff, near Irelan-Yuba Gold Quartz Mining Company, power line known as the “Plum- Plumbago bago Line” extends to the Mine. The fire started line. on the the last-mentioned Plumbago Plumbago The Mine and the Power Line are by Mining Company. Plumbago the Croesus Gold owned Development Company, Yuba-Sierra Line constructed year 1933, Plumbago Mine about the a lessee of and was electricity for a time it to transmit to said mine. used Development Company the Yuba-Sierra Thereafter aban- 1935, defendant, In Inc., O’Brien Mines, its lease. doned possession assigned Mine into came *4 mining claims “together the with lease which covered the im- ’ ’ equipment appurtenances, operat- and provements, and were Appellant fire. selling at time the ing mine Inc., being same electricity delivered Alleghany-Spanish Mine Line and the Plumbago over fire oc- right way the latter line where Line. The feet on ten to eleven curred width of had been cleared to a constructed, but at line first each side of the center when brush, grass and un- time the fire with occurred covered pole dergrowth. ten feet of the There were trees within many instances extended line, the branches of which grass leaves and on and over wires. fire The started reached the ground right way quickly and on the by. inspected the line or had never brush near way except it was at right immediately after constructed meet of con- which time it that it did not its standards found strung poles, line were on struction. The three wires of the Line being Alleghany-Spanish there Mine end fuses Plumbago and Mine. a transformer and meter at the morning 16, 1936, At on of October about o’clock velocity, during a wind which was of considerable but not year neighborhood according unusual for that time of sixty plaintiffs’ pine fifty between and evidence, tree twenty-five height thirty feet feet broke about off at ground and the transmission wires from the fell across on Plumbago breaking them, Line, but one end of two suspended being tree remained The wires third wire. charged electricity, sparks the result was therefrom ignited grass, way leaves brush on the 2,200 acres, thereby kindled, spread fire area of over an destroying path, buildings, timber, personal prop- in its erty by plaintiffs. Plumbago owned The wires on the Line 2,300 6,900 volts, which was reduced to volts carried Plumbago Mine. The tree transformer at the which fell was twenty-four growing live tree located about feet from the Plumbago wires of Line. The commencement of Plumbago Line the fire was on United government the national eight land in forest States about Plumbago junction from the Mine toward the hundred feet Alleghany-Spanish Mine Line the Plumbago Line. national Line traverses forest lands virtue Appel- the United States Forest Service. permit from of a equipped with a circuit substation was breaker de- lant’s automatically electricity the flow of into the signed to break Mine Line whenever there Alleghany-Spanish was a short on the line. circuit *5 present
Plaintiffs in support judgment several theories appellant’s of negligence causing including the fire either the failure function, of the circuit breaker or fuses to or the manual closing of the circuit too soon and without investigation operated. after the appel- breaker Also that lant, allegedly a being duty under to the Plumbago so maintain electricity escape therefrom, negli- Line that could not was gent permitting brush and inflammable material to accumu- right way late and remain and in permitting on of trees to stand in proximity such close line that a falling Appellant’s tree would contact wires. main con- tention is support that the evidence is not sufficient to judgment any theory and that it under obligation was no inspect Plumbago to or maintain the Line. In .view of the reached, conclusion which will we we concern ourselves only theory negligence. with the last above-mentioned of
Appellant any duty denies it is under with re spect inspection the maintenance and Plumbago to Line, asserting supplying gas person electricity that a responsible for the condition of the conductors or way when he (Roberts does own or control them. Co., App. ; & Gas Electric 353] Ray (2d) App. Gas Electric 3 Cal. 329 [39 (2d) 812].) seen, As we have the Croesus Gold Mining Plumbago Company is the owner of the Line and O’Brien Mines, Inc., Mine, appur lessee of the and its Nevertheless, appears 1, that on 1935, tenances. December agreement into an sell appellant entered to The Socorro Mines, Incorporated (the predecessors 2,300 Inc.), power with motive force of electric volts. It agreement supplying under that escaped electricity significant and caused the fire. The which agreement as follows: portions promises are (The Consumer, and deliver to Socorro “sell Mines In promises hereby corporated) the Consumer to purchase Company, (appellant) ... all of the Power electric from the operation required energy for the be the Con shall machinery apparatus, and in sumer’s electric conduct upon premises business Consumer’s Consumer’s energy Sierra Co. . All Alleghany, . electric . near . . . situate metered at delivered and force be . . . electro-motive shall hereby grants . . . Consumer Power . . . Com 2300 volts. route for practicable the shortest pany over Con necessary build over pole lines which it making delivery here purpose premises sumer’s for the by the energy delivered Power under. . . . shall be Such Company’s Trans the Power Company the Consumer designated by the place to be Con a convenient formers sumer, however, the Power subject, approval ours.) Company. (Italics ...” *6 appellant installed trans- agreement its Pursuant to that premises Plumbago Mine, meter the the former and at the Plum- consumer, Mines, Inc., and at a on the O’Brien beyond fire Under bago where the commenced. the Line presented believe the reasonable in- here we circumstances appellant using Plumbago the Line ference that the was joint right of purposes its had at least control thereof for and agreement Mines, Inc. The calls for the de- livery power place desig- from the transformer at a of the the by Up nated the consumer. time that the current transformer, passed appellant through reached the delivering electricity engaged pur- the and for that was controlling Plumbago pose using and Line with the implied ’Brien of 0 Inc. consent Commission, 9 of the Railroad
While Rule is con- part agreement a appellant made between the ceded is provides Mines, Inc., “The company and O’Brien does inspecting lines, duty assume the the consumer’s part thereof, apparatus, or appliances, and assumes provision agreement liability therefor,” no this would injuries appellant liability exempt from for sustained through negligent by persons third maintenance said line. seen, by
If, appellant adopted we its contract has consumer, delivering power line means of as its line or not under extent the is not consumer’s then to that joint control; it is at least under control of entire his energy. of the electric seller and consumer both the with another points contract con- out under tap sumer, line borne Tightner, the loss the latter’s the Railroad Commis- him, the above rule of and that under Tight- forbidden discrimination between sion there would be here involved!. There is no discrimina- ner and consumer power person merely is delivered to one at because tion 564
beginning private of his and to line another over and at the end of the premises. consumer’s line and at the consumer’s
Reference is made to the case of Roberts v. Pacific Gas & Company, supra. Electric city There the of Chico power owned the line and action was party a third defendant, Pacific Gas & Electric injuries Company, negligence for suffered in the mainte nance thereof. However, the contract between defendant and city power reserved to defendant to transmit over the independent line to one of its customers. The court power held that company joint the defendant had such con impose upon duty trol as inspection care in the In maintenance of the line. case bar the use Plumbago Line to deliver a certain amount Mine at the transformer coupled with ownership its and control transformer at the mine By shows it had control of the line. ownership control of the transformer and meter it controlling electricity flow of the and all facilities therefor between the (Roberts transformer and its substation. Gas & Pacific Co., supra.) Electric For the above reasons it is manifest Ray that this is not a case like Gas & Co., Electric App. (2d) (2d) 812], Cal. and Hill v. App. Gas Electric Pac. 492], where *7 appliances injury causing the the entirely were owned and by beyond plaintiff controlled the and were point of delivery by supplying commodity. one We must con clude therefore that duty owed a of care with re spect inspection and maintenance of the Plumbago Line right way of where the fire occurred. duty imposed upon care supplying one elec- tricity pole over line a under its control is stated in McCor- Great Co., mick v. 658, Western Power 214 Cal. 663 Pac. [8 (2d) 145, 81 A. L. R. as follows: 678] “ ‘The standard ordinary to be attained is that of and rea care, reasonably sonable and this means such care a careful prudent person, having in dangers view the to be avoided injury therefrom, and the likelihood of would exercise, under ’ circumstances, prevent in injury. order to . . . ‘If,’ therefore, says in Minter v. Diego court San Consol. Co., 749, 723 750], ‘guided etc. Cal. those ordinarily regulate the conduct which considerations person have had prudent affairs, ordinarily would human placed suspect would that the wires so ground reasonable proved said to injury, plaintiff can be cause ’ rea is such that duty. the evidence And where breach of above fairly the answer might men differ as to sonable determine, for the question, the issue is one of fact its verdict will not plaintiff, in of the if it finds favor inspect the did Appellant never be disturbed.” exist dry grass permitted to falling ignited wire Line. The brush right way, quickly kindled which turn Al wires. permitted and remain under the to accumulate though the wind was about broken tree way, twenty-four line of the from the center feet pole feet each side which had been about eleven cleared tree, against it rested line, growing and was a live and there twenty-two feet broke, from at the where it about rubbing The effect of limb of tree. ground, a another probably could not that limb which fell the tree observed, surely the contact could but the existence of inspection. unrea reasonable It is not have been seen anticipate require high winds appellant to that with sonable to occurred, vicinity the fire usually blowing in which might of the wires. Under the tree fall across and break one presented, appellant was circumstances here bound to antici velocity high a wind even where pate the existence of such (Rocca v. County winds were not Tuolumne Elec. unusual. 468].) App. It should antici etc. probabilities pate did break the would indi that once a wire igniting cate that a short circuit result combusti would permitted grass brush which material such as ble way. right of It is remain on the common accumulate and knowledge once in a forest a fire commences well everything forest and consume thousands of acres of else path brought before it can be under control. It not decisive portion within that the tree was not the limits permits way which had been cleared. The authorizing Service United States’ Forest the construction government specify land line across did not width of way. Supervisor *8 right The Forest who had do with the to testified that trees giving permits could cut down necessary proper for the maintenance or trimmed whenever 566 beyond might be though such trees power line even way. right of It clearing for the original of the power line though a tree near a held even
has been that private upon property, the owner along running a street is negligence limb may be when a guilty of the line County (Rocca v. Tuolumne Elec. tree falls on wires. proximity Co., supra.) is in such close to a etc. If a tree wires, to across the that fall pole line wind cause eventuality against negligence; such provide failure to Joaquin Corp., etc. Power 59 as said in Smith v. San Cal. or App. 647, 649 : Pac. [211 843] pleaded answer,
“The defendant in its and thereafter of- prove, showing tending show fered to facts plaintiff properly place wire touched was night arose, large before, that a wind and the leaves of a it, and palm were blown over the wire and broke facts of God. If the facts stated such constituted an act an act have been constituted of God defendant should However, permitted to show the same a defense. the re- alleged spondent an contends that the facts do not show act meaning (Fay within of that rule. proper God 198, Improvement Co., Rep. 253 Cal. Am. St. 188, 1099, 943].) 16 L. R. A. 28 Pac. In behalf this position palm he contends that if tree stood such endanger the defendant’s wire that the should defendant properly protected failing and, wire therefrom part so, neglect do an act of omission was on the defendant, sup- and not an of God. act This contention is ported by (Chidester the authorities. v. Consolidated Ditch ” 197.) Co., 59 In the ease of Mountain Sullivan 1038, 1044], (2d) Power Ore. States sixty thirty growing twenty-five foot tree was located about traversing feet from defendant’s line timbered country. highA re- wind blew it the wires with the across plaintiff’s prop- a fire destroyed kindled which sult erty. imposed Liability defendant, so and in doing degree court stated the of care to be as follows: graduated required always care is accord- degree
“The danger ing activity pursuing. one is attendant ordinarily vary—it does The standard conduct of person. com- prudent such an But individual exercises care dangers to be and the likelihood mensurate with the avoided *9 take being true, be well to injury Such it of to others. electricity. Electricity ais quality of note of the harmful greatly qualities are facili- destructive dangerous force whose Since by mysterious nature. subtle, invisible, and tated many distant plant generated is often miles where fre- place consumption, the transmission lines of through forests, country streets, quently pass roads, city over property if places or danger and other where to life lurks length escapes from the The the electrical current conduit. impossible of of the transmission wires renders the character dangerous supervision generally bestowed other sub- ’’ again page And 1046: stances. per- “Accordingly, defendant, in we conclude that right way for duty formance to maintain its of of its safe de- electricity, the transmission of was bound exercise a to dangerous gree highly of care commensurate com- duty modity conveying which it was over its wires. This unperformed permitted remained long grow so as trees it, proximity such close to its uninsulated wires that judgment prudent person, the exercise a reasonably of of should have known that the tree the wires would come into contact in a endanger safety manner that would property.” others or their
Appellant points
way
to evidence that
customarily
was cleared and maintained the same
was
power
done
traversing
with other
lines
national forest lands.
Conformity by
general
power
defendant
custom
com
panies with relation
maintaining power
to the manner of
rights way
lines and
does not excuse defendant unless the
practice
(Anstead
is consistent with due care.
v.
Co.,
&
487];
Electric
Under the circumstances this court cannot therefore implied set finding negligence aside jury and de- termine as a matter permitting law a tree to stand in proximity allowing grass such close to line and brush to accumulate on the shown to was case, exist in this negligence. did not constitute complains giving and the refusal give jury. Appellant’s certain instructions to offered but instruction jury refused was to the effect that if the nor controlled the owned appellant “neither
found that duty under no Plumbago Tap Line”—then to do so is inspect maintain and its failure or that line respect instructed the negligence. court Line as follows: control question you “If the fire find from the evidence that defendants, from a tree was set ablaze an ember which the any specific defendant, authorized either to trim or had been between the or cut down and the fire caused contact defendant, tree’s branches wires said and the uninsulated them, were trans- defendants, or over which said or de- mitting current, defendant, electrical and that said *10 had fendants, condition, might knew of said or have known of they ordinary it or existence diligence, exercised of the failure, wire, proximity tree in then their said electric to said any right keep or the used them, failure of of of anything by power trees, or of line cleared of such tree or hazard might v-dtieh line a presence make the of said de- area, negligence part a forest of said on the constituted ours.) fendants, (Italics or doing.” said of defendants so of- prejudiced. We Its appellant not believe was do that the strictly fered in that did accurate instruction was not definitely liability being predicated of include element Plumbago joint upon right of control with the lessee of the while given respect control, Mine. The with instruction necessarily possibly wholly accurate, mislead would not jury. may be that “transmission” It construed to mean of Plumbago electricity “use” Line over and by joint appel- way, control of the line included the element delivering adoption lant, line it for its use of the any event, In we Mines, Inc. electricity at appellant did have least seen, does show that the evidence Plumbago Line reason of joint control of flowing the circumstances. inference objects advising also to an instruction regulations of the Commis- jury the rules and Railroad that apply energy only after to electric evidence sion admitted delivery they are considered consumer and to be appellant’s place between only delivery took substation if the origin point of the fire. That instruction is and the particular expressed, the views herein accordance stating responsible involved, appellant is not for rule the maintenance or is facilities, condition of the consumer’s heretofore discussed. were not deliveries as There two by appellant, only claimed delivery trans- was from the former at Plumbago Mine.
Finally asserts that error was committed expert in the testimony refusal of the court admit toas why placed transformer It was Mine. very inquiry doubtful properly that such within the field opinion presumably evidence. The answer that be would forthcoming only would the conclusion of the witness position nothing of the transformer had to do with delivery electricity by appellant. That issue subject one jury, concerning for the jury a which the expert did purpose not need assistance. If the was to elicit evidence on the function of transformer, appellant a was not prejudiced by the ruling because other intro- evidence was duced to show that the 6,900 electro-motive force of volts reduced means of the transformer delivery to a net 2,300 energy passed volts after the through the transformer. foregoing In view conclusions it is unnecessary to discuss relating the evidence negligence to the other claims of plaintiffs relied.
At the close trial the returned verdict plaintiffs against for all of the but appellant, Pacific Gas only. Company, Electric No verdict was returned as O’Brien defendant Inc. Four forms of verdict were jury. One, submitted to the all verdict for defendants, one plaintiffs for defendants Pacific Gas & Electric *11 Company Mines, plaintiffs and Inc., one for and against Inc., defendant Mines, plaintiffs O'Brien and one for against defendant Company. Pacific Gas & Electric The jury upon used and returned its verdict last-mentioned only. form jury The were instructed that if their verdict plaintiffs was for it necessary is not against that it be all of defendants, but if it was found that only one the de- negligent then the verdict should “only be fendants against defendant”; said and further that several forms jury verdict were handed you to the “one of which will cause by your signed to be foreman.” Plaintiffs moved for a new trial or retrial in the alternative as to defendant O’Brien Mines, plaintiffs’ Inc. The trial court denied motion, they appealed have such order of denial. We think is
570 order, inasmuch but an appeal from such that no lies clear trial in place what took us discloses record before jury, will review we respect of the
court with to the action in connection guidance the trial court the same for the in case. may be taken this any proceedings which with further against two one of verdict It well settled that a is is other defendant as to the silent defendants but is merely failure is in latter but not a verdict favor of the (Fennes issues. jury upon all of the part of the to find (2d) 538 Pac. sey Co., 10 (2d) & Elec. Cal. v. [76 Pacific Pac. 177 Cal. ; Benson v. Southern [171 104] Co., 73 Cal. ; [15 Railroad Rankin Central v. 948] 605.) Benjamin This rule ; Stewart, Pac. v. 61 Cal. 57] may construed be subject qualification a verdict to the that pursuant which it with reference instructions Co., supra; Gas & Elec. (Fennessey rendered. v. Pacific ; (2d) Pac. Hand, 198] Snodgrass 220 Cal. [31 479].) Sumida, App. 590 59 Cal. Crain v. given here the instructions But do believe that we as to necessarily construed reference to the verdict Inc. defendant, O’Brien in favor of indicate a verdict make they merely omitted to probable equally It ease of in the As stated defendant. determination as to that (2d) 541], App. 128, 132 Smith, Keller passing in situation: similar ‘‘ suggested case Crain v. rule of construction in the no Sumida, supra, exactly applied here, could not be since express in favor jury any finding where did the in this case an petitioners. requires they so To hold found they something they inference that intended to do jury expressly though done. Even the court instructed the might against that it one time in favor find and- the same defendants, strengthens of the other while such an instruction suggested, the inference it is no means conclusive jury. expression showing absence of some the intention of the drawing only possible There is a wide between difference conclusion, expressed finding an one where there is only other defendant defendant another favor of the drawing although inserted, name of the other is not inference, probable through may be, as to the intention jury regard entirely of a that has omitted to a matter been just possible from its verdict. It is the inference draw rejected proposed this read and ver case *12 it signed that be following it caused to the one diet next particular In this preceding it. those read considered way. drawn either could be presumption an inference case lies with greater probability may that the be true While it peti óf in favor these jury to find view that intended this be jury intention could tioners, question of the if the seems presumption, rule the established left to inference or in to jury must not be left intention of the to be that the declared, expressly that must presumption, ference or it expressly reference not declared in and that where it is answered, separately have one of several defendants who par jury pass upon that be taken that the has failed to must case,of Fennessey ticular In the Gas issue.” supra, questioned jury after Electric court against returned, their only verdict one defendant was they specifically they bringing not ver stated that were against re dict the defendants not in the mentioned verdict plaintiffs turned. Nor can it be said that are object estopped against failure defendant to the to find Inc., objection Mines, they O’Brien because waived the requesting make the court to instruct the retire finding respect pursuant to that defendant to section 619 of the Code Civil Procedure. The of waiver doctrine merely under the circumstances here if involved means objection no is made to returned, the verdict when it is objection is waived insofar as it been effectual as attack on the returned. If all verdict the issues are objection verdict, thereto, determined but no is made therein, then the verdict stands as the issues included but remaining large the matter is set issues and fur proceedings adjudi ther had should be in the trial court to (Portman Keegan, App. (2d) cate those issues. (2d) 400].) said, plaintiffs In what we have obvious view of in this case de- the issues retried as to are entitled to have Mines, Inc., also Socorro O’Brien known as The fendant Incorporated. Mines, appellant, & Electric judgment appeal denying order
Company, affirmed. The a retrial as plaintiffs’ defendant, motion for Inc., is dismissed. Traynor, Spence, J., tem., Shenk, J., Curtis, J., J., pro concurred. *13 which
EDMONDS, J., Dissenting. A powercompany it appliances which energy transmits electric over wires or inspect is does them and obligation not control is under no injuries not liable for of their defective sustained reason (Roberts 102 Cal. Co., Gas condition. & Electric App. appellant Pac. 353].) It is conceded [283 upon Company & Electric own the line not did occurred; question short circuit therefore the importance con- controlling utility such is whether the had damages trol of this line as to make it for the caused liable by the fire. power con- company with the
Under the contract of employed concerning facilities testimony sumer question energy, one delivering this the electrical it, I jury. evidence, would However, fact for read company, power support a verdict either for give circumstances, the failure under such not power company clearly stating instruction damage fire if not liable occasioned did for some constitutes reversible control of line to mine 584]; Urgo, (Scarborough error. 191 Cal. Berkovitz v. American River Gravel quoted opinion 675].) Certainly the instruction give my justifying instruc- the refusal to associates clearly law concerning tion not state the rule of control does power company The fact which the relies. utility transmitting electrical over the current Line compel Mine conclusion that does in- line; stated in the refused had control of the the rule company applies struction to those situations which a transmitting energy line which electrical over a it does control. reasons, my opinion, judgment
For these should reversed.
Appellant’s petition rehearing Septem- for a was denied J., rehearing. ber voted for 25, Edmonds, 1941.