22 S.E.2d 662 | Ga. Ct. App. | 1942
1. It is the general rule, deduced from the authorities, that where wiring, or other electrical or gas appliances on private property, is owned or controlled by the owner or occupant of the premises, a company which merely furnishes electricity or gas for such respective appliances is not responsible for the insulation of the electrical appliances or the condition of the wiring or electrical or gas appliances, and is not liable to the owner or occupant or to third persons on the premises for injuries caused by such defective condition. The rule is subject to the exception that whenever such electrical current or gas is supplied with actual knowledge on the part of the one supplying it of the defective and dangerous condition of the customer's appliances, he is liable for injuries caused by the electricity or the gas thus supplied for use on such defective and dangerous appliances, but no duty of inspection rests on the one supplying the electricity or the gas from the mere fact of rendering such service to the customer owning or controlling the equipment. Where the one supplying the electricity or the gas has no control over the appliances and has no actual knowledge of the defective and dangerous condition thereof, his responsibility ends when connection is properly made under proper conditions and the current of electricity or the gas is delivered in a manner which will protect both life and property.
2. Under the above-stated principles of law and the evidence, which failed to show any negligence on the part of the defendant power company toward the plaintiff employee of the textile mill, who, while performing his duties for the mill on its premises, was injured by coming in contact with an uninsulated wire which was part of the mill's system of wiring, and which was charged with a current of electricity supplied *270 by the defendant power company, the court did not err, on motion, in granting a nonsuit.
3. The assignment of error on the admission in evidence of certain testimony, as dealt with in the opinion, is without merit.
It was alleged that the defendant was negligent: (a) in turning on its electric current for use on said defective and dangerous wires without having first inspected the same; (b) in continuing to furnish electric current for such use after it had knowledge of such defective and dangerous condition; and (c) in running the electric current, which it owned, through the defective wiring, the current and wiring being under its control at the time of the plaintiff's injury and during all the time the defendant served electric current to the textile mills. The plaintiff amended his petition by adding a second count in which, in addition to the allegations of count 1, it was alleged that the defendant had control or joint control over the current run over the said wires, and that, irrespective of notice, the defendant was negligent: (d) in running the current over the defective and improperly insulated wires which it controlled, and (e) in not having a printed sign or other form of warning at the ladder on the tank to warn persons of the danger from the uninsulated wire.
The defendant filed an answer denying liability and specifically denying that it was negligent in any respect or had control of the current of electricity which injured the plaintiff or had notice of any defective wiring and also denied the extent of the injuries alleged to have been sustained by the plaintiff.
On the trial of the case the following evidence was introduced on behalf of the plaintiff:
The plaintiff testified as to being injured by the current of electricity at the uninsulated ends of twisted wires in close proximity to a ladder while he was engaged in painting a water tank on the premises of the Cedartown Textiles Inc. When he was first employed the tank was not on the premises but was put up a year or more later and the wire was run there after the tank was installed by the mill on their property and used exclusively by the mill. He had been up the ladder on previous occasions and *272 had to pass the wire and saw it but did not know that anything was wrong with it. On the day of his injury he came down the ladder for lunch and passed the wire, and on going back up the ladder after having had lunch a part of his body came in contact with the uninsulated portion of the wire, and the current of electricity thereon shocked him and produced described injuries.
James H. Smith testified by deposition that he was an electrician at Cedartown Textiles Inc. and had been working there for four years. His duties were to maintain the electrical equipment there. The Georgia Power Company substation was on the premises. Their switches were outside the substation. There are three sets of switches on the mill's side of the line and one set on the Georgia Power Company's side of the line, the substation being surrounded by an iron fence to protect it from outside interference. He had seen a key to that substation at the mill. No employee of the mill, so far as he knew, had ever gone in the substation. The power company employees read the meter. The switches are outside the fence which encloses the substation, both the switches on the high-voltage line and those on the reduced current line. Those switches are where they can be turned either by the employees of the mill or the employees of the power company. If the switches on the low-voltage side are closed and the switch on the high-voltage side is closed, that lets the current come through into the mill and the mill building. The power company employees could cut off the current at any time by opening the switch on the high-voltage side or those on the low-voltage side. Beyond those switches the next switches are just inside the mill building. The switches in the building can be used to cut the current on or off the machinery. To get to the tank at the time the plaintiff was injured the current had to come first through the substation, then through the company's meter, then through the switches and wires and on to the tank. That current, if it was on entirely to the tank, could be cut off by the power company opening its main switch on the big high-power wire just outside the station. If it was on at the tank it could be cut off by opening the switches just inside or nearer the mill from the substation. There are three switches that could cut it off. It could be cut off by one or the other of those switches. With reference to the power company having access to those switches, they *273 did not have access to them just like he did. They never come and bother the switches inside. The switches are where anybody can go up there and open or close them. As to whether he considered it his duty to inspect the wiring leading up to the machinery, he did if there was anything wrong, to correct it, but the wiring was supposed to have been put up right and for that reason he never bothered it. It worked all right. When he went up the tank after the plaintiff was injured he made an inspection, and he found that the ends of the wire where it was wrapped around the insulators were open, but to his knowledge that is the way it was supposed to be. It was insulated wire to the tank, purported to be insulated, and attached by a bracket, a piece of iron with two porcelain spools on it for the wires to fasten to. The part uninsulated was the end of the wire that was clipped and twisted around to hold it on the insulator. The part exposed was just the end where the pliers had cut it off. It was not extending out; the end of the wire was brought around the spool and twisted around the other part of the wire and about a sixteenth of an inch of the wire was exposed and the wire carried 550 volts.
The same witness testified in person substantially as follows: The substation is, he estimates, 300 or 400 feet from the water tank. The Cedartown Textiles Inc. bought the wires which are within the mill. The wire that goes to the water tank goes into No. 2 mill at the north end. It runs through No. 2 mill and on out the west side of that mill to No. 1 mill, and thence to a pole located southerly about the center of No. 1 mill, and from that pole to the corner of No. 3 mill, and, at the time of the plaintiff's injury, from No. 3 mill to the water tank. All of those wires were under his supervision as electrician of the mill, and if repairs or alterations were made he would be the one to make them. The wire, from the time it enters the mill until it gets to the water tank, is mill wiring. There are three switches on the line, two of them inside the mill and one at the transformer. The one at the transformer would cut the current off of the entire No. 2 mill. There are two other switches in the mill that belong to Cedartown Textiles Inc. on this same line and which would control the current going to the water tank, so that if either of the switches in the mill was open no current could get to the water tank. The only place the power company has a switch is at the substation, on the *274 high side of the line, that is, before it reaches the transformer. On the low side of the line are two switches but he does not know to whom they belong. They are so located that he can operate them. The current from the switch which controls the current into No. 1 mill goes into that mill to the switchboard, which belongs to the Cedartown Textiles Inc., and from there is distributed throughout the mill to various points. He, as electrician, can cut off the current to No. 1 mill from that switchboard, and at various other points in the mill there are switches where he can cut off the current, and all of them belong to Cedartown Textiles Inc. The current is delivered to the Cedartown Textiles Inc. at these switches on the substation and not at the mill, and that was true on May 24, 1939, at the time the plaintiff was injured. He was not there when the line was run to the water tank, but had worked there before it was put there, and a little while after it was put there he went to work again. Part of the mill was in operation when he worked there before it was put there, and at that time the current was already turned on, and the mill was getting current from the power company but no water tank was there. He made any changes or alterations to be made on the wiring in the mill and any wiring on the mill premises, and that was true previously to May 24, 1939. The power company had nothing to do with those wires in any manner. It had nothing to do with the wire which went to the water tank. The meter is on the framework of the substation. That is where the current gets to these switches. All the current that goes into the mill goes through those meters, which are the property of the power company. At that point the power company delivers current to the Cedartown Textiles Inc. From then on it is the current of the mill. All the current that goes through the meter is paid for by Cedartown Textiles Inc. to the power company and is used and controlled from that point on by the Cedartown Textiles Inc. There is only one method of conducting that electricity from that point and that is by the wires. Those wires from that point go one set to No. 1 mill and one set to No. 2 mill. One other line goes away from the substation, and that goes to the boiler room of the Cedartown Textiles Inc. All the current which goes over those wires has previously gone through the meters and thence over those wires either into No. 1 mill or No. 2 mill and is used by Cedartown *275 Textiles Inc. After the plaintiff was injured the witness wrapped with varnished canvas tape the exposed ends of the wires at the tank. When he did that he was taping it as an employee of the Cedartown Textiles Inc., because it was under his supervision and control and the property of his employer.
James Hutcheson, who was working with the plaintiff in painting the tank, testified as to the circumstances surrounding the injury to the plaintiff and corroborated his testimony. He had been up the ladder and had observed the exposed ends of the wires but avoided contact.
R. L. Barrett testified as to helping take the plaintiff to the hospital after his injury, and that the plaintiff was semiconscious.
A. M. Blankenship, who was working for Cedartown Textiles Inc. at the time the plaintiff was injured, testified that he had seen some fellow come on the premises to read the meter. He would wind up a clock and said he did it twice a month, on the 1st and 16th, out at the transformer. He would take a paper off, something like a paper, looking like a register. The witness saw him do it several times. A month or two before the plaintiff was injured this person drove up, and there was a transformer hanging over the door with some kind of naked wires on the side and the witness asked him "Ain't them wires supposed to be wrapped?" and the other replied "If there is anything on it, it is," whereupon the witness told him "If you will just look around you will see a whole lot of wires that way," but did not specify any place for him to go to.
A. P. Gilmore testified that he was district manager for the power company and was familiar with the company's power lines and their location in Cedartown. It furnishes power to Cedartown Textiles Inc. and has a line from a substation in Cedartown, known as the transmission station, and power from that substation or line goes the shortest route to Aragon, Georgia, to another substation. Cedartown Textiles Inc. has a tap line south of its property, about half a mile or further, running by the side of its mill, and there another tap is made that runs directly to the substation on its property. There is no switch at the tap where the line pulls off going to Cedartown Textiles Inc., but there is a switch at the substation juncture. There is a switch beyond the tap towards Aragon, whereby the power company may serve *276 the line from the Cedartown end or isolate the Aragon end. The power company has control from the substation over the 38,000 volt line as it goes from there to Aragon, has control of it as it comes from Aragon to the tap line, and control of it as it comes to the second tap line. It has control of it as it comes into the substation on the mill property. There is a switch mounted on the substation structure which is controlled from the ground. There the power company can cut off the current to the mill property by opening that switch. The power company owns the substation on the mill property and owns the meter on the property. It serves the customer approximately a 550 voltage service from the substation, and it is customary that the lighting service in most mills be operated on 110 or 115 volts.
A. M. Blankenship, recalled, testified that he was able to identify the man he referred to in his previous testimony as having come on the premises of the Cedartown Textiles Inc. to read a meter, and pointed out in the court room a Mr. Haynes as such person, whereupon, in answer to an inquiry from plaintiff's counsel, the defendant's counsel admitted that such person was an employee of the power company, and stated that at the time referred to by the witness Blankenship, Haynes occupied the position of meter reader, whose duties were solely to read meters.
Dr. P. O. Chaudron testified as to the nature of the plaintiff's injuries.
The plaintiff introduced in evidence a contract, dated May 17, 1938, between Georgia Power Company and Cedartown Textiles Inc., which provided, among other things, as follows:
"First: It is understood and agreed that the electrical energy to be supplied hereunder is principally for power purposes, and that it shall not be used by the customer for lighting purposes, either directly or indirectly, except incidental to the business for which it is used as power. . .
"Sixth: The electrical energy to be supplied hereunder shall be measured by a suitable meter or meters, to be owned and installed by the company at its expense in a suitable place or building upon the customer's premises. The maximum demand hereunder shall be ascertained by such meter as the company may select for this purpose, to be likewise owned and installed by the company at its expense in a suitable place or building upon the *277 customer's premises. . . All meters, wires, and other appliances furnished by the company shall remain the property of the company, and the customer shall use reasonable diligence to protect the property of the company on its premises. . .
"Ninth: The company reserves the right to discontinue the service and cut off the supply of electrical energy at any time at least twenty (20) days after written notice deposited in any United States post office in the State of Georgia, addressed to the customer at its post-office address given in this contract, whenever the customer has violated any terms of this contract.
"Tenth: It is understood and agreed that the electrical energy to be delivered hereunder by the company to the customer is for use by the customer as a motive power for operating its machinery, apparatus and appliances in and upon the customer's plant and premises hereinbefore mentioned, and for lighting said plant and premises at that place and for those purposes only, and the customer shall not use and hereby agrees not to use or apply or permit to be used or applied any of said electrical energy at any place or in any manner for any purpose other than as provided for in this contract, and said customer shall not have the right and hereby agrees not to transfer or assign this contract, nor to sell or dispose of to others, the whole or any part of the said electrical energy delivered hereunder, without the written consent of said company first obtained.
"Eleventh: The customer agrees that all apparatus used by it in connection with the electrical energy to be supplied hereunder shall be of standard make, purchased from some reputable manufacturer and having a power factor of eighty per cent. or better, and efficiency as high as is obtainable at the time of purchase, and satisfactory to the company.
"Twelfth: It is agreed that all wires upon the premises of the customer to which the company's services will be connected shall be so installed, changed and maintained by the customer that the company may carry out this contract, and in accordance with the requirements of any public authorities or insurance agencies exercising authority thereover. The customer will also give all necessary permission to enable the agents of the company to carry out this contract and construct and maintain its lines and circuits in and at all places required by the company and owned, leased or *278 controlled by the customer. The customer also gives the company the right at all times, by its duly-authorized agents and employees, to enter the premises of the customer at all reasonable times, for the purpose of keeping in repair or removing its property, or inspecting its own or the customer's wires, reading meters, and performing any other work incidental to rendering the service hereby contracted for, and the customer further agrees that it will not permit such access to parties other than its own employees or the authorized representatives of the company. . .
"Fourteenth: The customer agrees to keep his, her, or its machinery, lines, apparatus and appliances in a safe condition and will and does hereby indemnify and save harmless the company from the payment of any sum or sums of money to any person whomsoever, including attorneys' fees and court costs, which it may be called upon to pay on account of damage to property or fatal or personal injuries to individuals resulting from or which may be in any way caused by the operation and maintenance of the machinery, lines, apparatus and appliances belonging to the customer."
The plaintiff introduced in evidence record slips showing meter readings on the meter on the premises of Cedartown Textiles Inc. for the two years previously to the plaintiff's injury. There was one record slip per month during that period of time. The front of the statement on each slip contained two charts with diagrams of the meter face, meter number, the reading at the time the meter was read and also previous readings, and seven or eight other items with reference to the meter and the readings, the slip being signed with the initials "J. B. H." On the reverse side of the slip was stamped the date it was received by the accounting department of the power company, and in print were the following written instructions: "1. Mark on the slip the position of the hands just as they appear on the KWH meter dials. 2. For combination KWH and demand meters mark down on the left-hand scale on the front of the slip the position of the pointer indicating the maximum demand. For separate demand meters use the right-hand scale. 3. In all cases when marking the position of the maximum demand pointer, the figures on the scale must be marked to correspond with those on the meter scale. 4. After marking down the demand meter reading, break the middle seal on glass *279 cover of demand meter and turn pointer back toward zero. It will go entirely to zero only at the end of the 30-minute period. Wait for this, unless pressed for time, in which case it will be sufficient to turn pointer back as far as it will go, provided this is considerably below where it was found. Do not use force. 5. Seal demand meter before leaving. 6. Check current and potential transformers and wiring, to see if any damage has occurred to them since the last meter reading. See if KWH meter is running. See if demand meter appears to be working correctly. 7. Report anything that you think is in any way wrong at once by telephone to division headquarters. 8. Mail white slips [as directed]."
Upon the conclusion of the evidence for the plaintiff the court, on motion of the defendant, granted a nonsuit. The exception is to that judgment and also to the admission in evidence of certain testimony hereinafter referred to. 1. The plaintiff contends that under the evidence a jury question was presented, and that the defendant power company could be held liable for the plaintiff's injury either (1) on the theory that it had control or joint control of the current on the premises of the customer, Cedartown Textiles Inc., including the exposed wire with which the employee came in contact, even though the customer owned the wiring and the defendant had no notice of the defective and dangerous condition thereof, or (2) because, irrespective of control, the defendant had notice and yet failed to make an initial inspection before turning on the current, or (3) because, after receiving notice of such dangerous and defective condition of the wiring, it continued to send its current through the wires.
It is the general rule, deduced from the authorities, that where wiring, or other electrical or gas appliances on private property, is owned or controlled by the owner or occupant of the premises, a company which merely furnishes electricity or gas for such respective appliances is not responsible for the insulation of the electrical appliances or the condition of the wiring or electrical or gas appliances, and is not liable for injuries, caused by such defective condition, to the owner or occupant or to third persons on *280
the premises. The rule is subject to the exception that, whenever such electric current or gas is supplied with actual knowledge on the part of the one supplying it of the defective and dangerous condition of the customer's appliances, he is liable for injuries caused by the electricity or the gas thus supplied for use on such defective and dangerous appliances, but no duty of inspection rests on the one supplying the electricity or the gas from the mere fact of rendering such service to the customer owning or controlling the equipment. Where the one supplying the electricity or the gas has no control over the appliances and has no actual knowledge of the defective and dangerous condition thereof, his responsibility ends when connection is properly made under proper conditions and the current of electricity or the gas is delivered in a manner which will protect both life and property. Scott v. Rome Railway Light Co.,
It conclusively appears from the evidence that the wiring throughout the buildings of the customer was installed and paid for by it, and there is no evidence that the power company did not make safe and proper connections for the transmission of its electrical current. The wire to the water tank was installed by Cedartown Textiles Inc. a year or more after the current was turned into the customer's system of wiring and equipment, and there is no evidence that the power company knew of the existence of such tank wire until sometime after the plaintiff was injured. It follows that the power company did not supply the current of electricity with any actual knowledge of any defective and dangerous condition of the wire at the water tank. The contention of the plaintiff, that certain information communicated to a meter reader as to the condition of one or more wires at or near the transformer was sufficient to place the power company under a duty to inspect and become aware of the defective and dangerous condition of the wire at the tank, is without merit. Whatever notice this meter reader acquired was only constructive notice at most, and could not be said to charge the defendant with *281 actual notice of the defective and dangerous wire which injured the plaintiff. A witness, Blankenship, testified that he was a yard employee of the customer, and that several months before the injury to the plaintiff a meter reader, whom he identified at the trial, came to read the power company's meter, and that there was "a transformer hanging up over the door with some kind of naked wires on the side," and he asked the meter reader "Ain't them wires supposed to be wrapped?" and the meter reader answered "If there is anything on it, it is," whereupon Blankenship said to him "If you will just look around, you will see a whole lot of wires that way," but specified no place to go to. The evidence wholly fails to show by the witness or any one else that any of the wires referred to had been charged, or were then charged, with a current of electricity. So far as it appears, they may have been wires which had been abandoned as conveyors of electricity, if they had ever been so used, and it can not be presumed, as argued by the plaintiff, that they were charged with electricity.
Furthermore, the meter reader was not such a person as that notice to him of any defective and dangerous wiring would bind his employer. The plaintiff refers to certain written instructions given him by the power company in connection with his job as meter reader, and argues that such instructions show that he was under a duty to inspect and report to the company any existing defect in the wiring. Without entering into a detailed discussion of these written instructions, which are set forth in the statement of facts hereinbefore, it must be said that, properly construed, they related only to a duty to inspect and report on the equipment and wiring belonging to the power company, in connection with his duty of reading the meter at the substation, and suggest no duty of inspecting or repairing the wires installed by the customer.
Without actual knowledge of the defective and dangerous condition of the wire at the water tank, which wire was installed after the electric current was first turned on the wiring system in the mill buildings of the customer, the defendant was under no duty to inspect the wiring and was not negligent in continuing to send the current of electricity over the wires of the customer unless it had control of the current through the customer's wiring system and appliances. The plaintiff contends that such control is shown to have existed. We do not think so. Neither the testimony *282 of J. H. Smith, the mill electrician, nor that of A. P. Gilmore, district manager of the power company, particularly relied on by the plaintiff in his brief, nor that of any other witness raises any question which would require a submission of such alleged issue to a jury. The testimony is set forth in detail in the foregoing statement of facts and need not be repeated. It shows in substance the following as to control: The power company erected a substation on the premises of the mill. This was entirely enclosed by a wire fence, and the equipment was that of the power company. High voltage came into the substation from the wires of the power company, and by a transformer located at the substation was reduced to a lower voltage for use by Cedartown Textiles Inc. after passing through a meter installed at its substation by the power company. At the substation was erected a switch on the high-voltage side of the line. The incoming current of electricity reaches this switch before it reaches the transformer or the power company's meter. On the low-voltage side of the transformer are located two other switches. Before the current of electricity reaches a point on the wire where these two switches are located it has already passed through the meter. Inside the mill buildings are two other switches. The current that reaches the exposed wire at the water tank comes from a wire in one of the mill buildings and is controlled by a switch therein. The power company never had access to any of the switches in the mill buildings, and it never undertook to repair the wires or equipment inside any of the buildings. It is not shown to have been aware of the existence of any wire at the water tank at the time of the plaintiff's injury. The only place where the power company has a switch is, as already stated, at the substation on the high-voltage side of the transformer, and the current of electricity reaches it before it does the meter. By using that switch the power company could cut off all current from the customer. According to testimony of J. H. Smith, electrician for the mill, the current is delivered to Cedartown Textiles Inc. at the meter at the substation, and all the current that goes through the meter is paid for by the customer, and it is used and controlled from that point on by Cedartown Textiles Inc. The plaintiff refers to the witness, A. P. Gilmore, as testifying that the power company "controlled the current which went into the mills from a *283 switch mounted on the substation structure which is controlled from the ground." The quoted statement is somewhat inexact, in that the record shows that he testified "We have control of it [the current] as it comes into the substation on the mill property," etc. This is not equivalent to testifying that the power company controlled the current "which went into the mills." The current was controlled by the power company, according to the witness, "as it came into the substation."
Nor do the provisions of the contract between the power company and the customer, numbered 11, 12, and 14, evidence, as contended by the plaintiff, any control or joint control by the power company of the mill's system of wiring and appliances. Paragraph 11 merely shows an agreement on the part of the customer that the apparatus used by it in connection with the electrical energy to be supplied by the power company shall be of standard make, etc., a condition which the power company might reasonably exact without putting itself in the position of having control over such apparatus, equipment, or current after purchase and installation of such apparatus and equipment by the customer. Paragraph 12 merely provides that the wires upon the premises of the customer "to which the company's services will be connected" shall be so installed, changed, and maintained by the customer to enable the power company to carry out the contract and furnish the desired service and be in accordance with the requirements of any public authorities or insurance agencies exercising authority thereover. It also gives the power company the right to install and maintain a substation on the premises of the customer, with the privilege of keeping in repair or removing its property or inspecting its own or the customer's wires, reading meters or performing any other work incidental to rendering the service contracted for, but it does not put any duty on the power company to inspect or show in the power company a right of control of the customer's wiring system and appliances. On the other hand, it places upon the customer the duty of maintaining its wires, etc. to enable the power company to properly carry out its contract of furnishing the necessary electrical energy. Paragraph 14 does not indemnify or seek to indemnify the power company against its negligence which, if it did, might, as argued by the plaintiff, suggest some control by the power company, but *284 provides for indemnity from the customer for the payment of any sum which it might be called on to pay on account of damage to property or fatal or personal injuries to individuals resulting from or which may be in any way caused by the operation and maintenance of the apparatus, appliances, etc. belonging to the customer. Notwithstanding the fact that an employee might be injured by a defective and dangerous condition of the mill's wiring or appliances under circumstances where, under the law hereinbefore stated, the power company would not be liable, it might anticipate that it might nevertheless be made a defendant in an action for recovery of damages by the injured employee, and it provided by contract, not against its own negligence, but for indemnity by the customer for any damage so sustained. Neither this paragraph by itself nor in connection with any other paragraph or paragraphs of the contract shows any control, single or joint, or right of control, by the power company of the mill's system of wiring and appliances.
The contention that the power company was negligent in not having a printed sign or other form of warning at the ladder at the water tank to warn persons of the danger from the uninsulated wire was not sustained by the evidence, in that, for reasons hereinbefore shown, the power company was not in control of such wire and no duty rested on it to erect such a sign or form of warning. Furthermore, it is not shown to have been aware of its existence, the wire having been run by Cedartown Textiles Inc. a year or more after the current was first turned on by the power company, and it had no actual knowledge thereafter of any such defective and dangerous wire at the water tank.
2. The evidence failed to show any actionable negligence on the part of the defendant, and the court did not err in granting a nonsuit.
3. The assignment of error on the admission of testimony from the mill electrician, J. H. Smith, that at the point where the current of electricity flowed through the meter of the power company it was delivered to Cedartown Textiles Inc. and from then on was its current, the ground of objection being that the testimony was a conclusion of the witness and that the question should have been resolved by a jury, is without merit. The testimony *285 was as to a fact, so patent that any discussion would be supererogation.
Judgment affirmed. MacIntyre and Felton, JJ., concur.