Harker v. Southern California Edison Co.

Action by plaintiffs to recover damages from the defendant on account of the destruction of certain property by fire alleged to have been caused by the negligence of the defendant. Plaintiff B. L. A. Barngrover had judgment and defendant appeals.

The complaint sets forth that the respondent Barngrover is and was at all times mentioned therein the owner of certain real property and the buildings thereon situated in the county of Tulare, state of California, commonly known and designated as the Porterville Magnesite Mill; that the plaintiffs Barker and Hoff were at the times mentioned in the complaint in the possession and occupation of the premises referred to, as the lessees of the plaintiff Barngrover, and were engaged in mining of magnesite on the real property described in the complaint; that the buildings and machinery on said property comprised a compressor plant and a blacksmith-shop. The compressor plant, as well as the shop, was inclosed in the building; that the compressor plant and blacksmith-shop, together with the machinery and equipment therein, were in use on or about the twenty-ninth day of July, 1923, and had been in use for some time prior thereto in the operation of magnesite mining, and were so operated by the plaintiffs Barker and Hoff; that the machinery and the compressor plant were operated by means of electric motors, the motive power for which was electricity furnished under

To this complaint the defendant demurred on the ground of misjoinder of parties plaintiff and also on the ground that the cause of action belonging to the plaintiff Barngrover was her cause of action exclusively and the alleged cause of action on the part of Harker and Hoff belonged to them exclusively and also that two causes of action were united without being separately stated. Other grounds of demurrer were alleged, which need not be mentioned. The demurrer was overruled and the defendant answered, denying all the allegations of the plaintiffs’ complaint, and, in addition thereto, filed a cross-complaint against the plaintiffs Harker and Hoff wherein it alleged that the fire was caused by reason of the negligent operation of the compressor plant and that its property was destroyed thereby, to the damage of the defendant in the sum of $1,500, and prayed judgment in the sum of $1,500 against the plaintiffs Harker and Hoff.

The cause was tried before the court sitting with a jury and upon the cause being submitted to the jury for determination, the jury returned the following verdict:

“(Title of court and cause.)

“We, the jury in the above entitled action, find a verdict in favor of plaintiff B. L. A. Barngrover, and against Southern California Edison Company, a corporation, in the sum of $3800.00.”

From the judgment entered upon this verdict the defendant appeals and files its notice of appeal in the following form:

“ (Title of court and cause.)'

“Notice of Motion to Plaintiffs.

“You and each of you will please take notice that defendant, Southern California Edison Company, hereby appeals from the judgment and from every part thereof entered against it herein on the 17th day of December, 1924, in favor of the plaintiff B. L. A. Barngrover, in the sum of Thirty-eight Hundred Dollars and costs.”

[1] A number of cases have been cited by counsel upon the question whether there was or was not an improper joinder of parties plaintiff in this action. Upon the part of the appellant it is forcibly urged that the causes of action set forth are entirely and exclusively separate and that while the owner of the premises may have a cause of action and the lessees in the occupation and use thereof may also have a cause of action, their causes of action are not in anywise connected and the joinder thereof improper, irrespective of whether the court upon the trial of actions begun separately by the owner and by the lessees might or might not properly order them joined and tried as one, or at one time, for the reason that the evidence pertaining to the injury of one plaintiff would likewise be relevant and exactly the same testimony that would be introduced to support or controvert the claims of the other parties plaintiff. Upon the part of the respondent it is urged that there is such a union of interest as entitles the owner and the lessee to join in one action for the alleged injuries suffered by the owner and lessee of the property, by reason of the alleged negligence of the defendant which caused the simultaneous injury. We do not follow the language of the respective parties, but simply summarize their contentions.

Although the appellant in its brief asserts that the defendant was prejudiced by reason of the order of the trial court overruling its demurrer, there appears nothing in the record to substantiate this position. Our attention has not been called to a scintilla of evidence admitted in the trial court, admissible under the rules of evidence, tending to prove any of the issues that would not have been admissible in a ease prosecuted for the alleged injuries by either the lessor or the lessee separately. No testimony, so far as we have been able to discover, was admitted in favor of either

[2] Though not in the order of presentation, it is here pertinent to consider the form and effect of the verdict which appellant alleges to be insufficient. In the case of Benson v. Southern Pac. Go., 177 Cal. 777 [ 171 Pac. 948 ], the supreme court had before it a verdict which failed to mention all the parties. It was there held: “A verdict against one of two defendants is not a verdict in favor of the codefendant as to whom it is silent, but as to the latter it is merely a failure of the jury to find upon the issues.” To the same effect is Benjamin v. Stewart, 61 Cal. 605 . In the case of As&bez v. Bliss, 178 Cal. 137 [ 172 Pac. 595 ], it was held that under the provisions of section 619 of the Code of Civil Procedure, where a party failed to ask that the defect in the verdict be remedied, if any defect existed, the defect was waived, citing Van Damme v. McGilvray

As stated in the beginning, an analysis of the proceedings in this cause show that in the final conclusion thereof it must be held simply an action begun and prosecuted by the plaintiff Barngrover to judgment, to the same effect as

[4] This brings us to a consideration of the merits of the controversy between the plaintiff Barngrover and the defendant. First, does the evidence sustain the verdict? Before answering this question by setting out the substance of the testimony, we may preliminarily state that the buildings in which the machinery referred to was situated were built upon a high hill or mountain, which apparently was devoid of moisture near the surface; that in the installation and operation of the appliances necessary and requisite for furnishing power to the electrical motors operating the compressor plant, ground wires were necessary to be installed to afford protection against a possible overload of the defendant’s wires; that in order to install the proper ground wires it was necessary to have the wires in some manner connected with moisture. In the instant ease it appears that the defendant installed its ground wire by placing a metal plate some two or three feet in the earth and connecting its ground wire therewith. The testimony is to the effect that the main power line maintained and operated by the defendant carried a voltage of 11,000 volts; that before this electric energy was delivered to the plaintiffs it was reduced to 220 volts. It also appears that it was necessary in preventing the 11,000 voltage carried by the main line from being communicated to the secondary line, or the line carrying only the lesser voltage, fuses were installed; that for these fuses to operate efficiently they should not be of greater strength than would admit of their blowing out before the high voltage on the primary line could be communicated to the secondary line intended only for a lesser voltage. The complaint sets forth that the fuses installed by the defendant were of too great strength to afford protection, or to express it in other words and to convey the

The plaintiffs’ contention that the fire did not start in the compressor plant is supported by the cross-examination of one of the defendant’s witnesses. We quote the following: “Q. So in order for the fire to have started because of the handle of the switch being in the starting position, that switchboard must, necessarily, have been on fire before the transformer. Is that right? A. Not necessarily. The insulation on the wires could be on fire before the switchboard took fire. Q. It would be seen very readily? A. Yes sir. Q. Then repeating my question again: For the fire to have started in the equipment of the plaintiffs, it would necessarily—this board from the insulation from above this starter would have been on fire before the transformers were on fire? A. Yes. Q. If the fire did not start there, then the fire did not start in the plaintiff’s equipment. Is that right? A. Yes sir.”

The testimony of the witness Smith just set forth was to the effect that the switchboard was not on fire and that the switchboard in the compressor plant was not on fire, and that the transformers were at the time he entered the compressor plant buildings. There is also testimony to the effect that the transformers contained insulation and oil which would cause a very black smoke, as testified to by the witness Smith. There was also testimony to the effect that a short circuit tends to show either improper equipment of the defendant’s appliances or of improper equipment of the plant. One of the witnesses, after testifying as to the possibility of an explosion in the transformers, testified as follows: ”Q. Isn’t it a fact within your experience, that transformers sometimes burn up without any defect occurring, or without any short circuit occurring in the consumer’s equipment? A. Yes, sir. Q. Bow can those fires be caused? A. The insulation of the transformer itself burning. Q. Couldn’t that have happened in this case? A. Yes, sir. Q. And allow 11,000 volts to go into •the starter? A. No; because I didn’t see any evidence in there that it did get over there at all. Q. But it could do so? A. It could do it, sure. Q. You testified that the

This testimony shows that one of the transformers was on fire on the inside; also, as we have said, it accounts for the color of the smoke being black. The burning oil in the transformers would necessarily give that color to the smoke.

Evidence was introduced by the plaintiff showing that on the morning of the fire, and for a short time preceding, the compressor plant was running in a normal manner, that the drill being operated required an air pressure of at least 75 pounds. There was also testimony that the equipment of the compressor plant had been inspected a short time previous to the fire, just how long does not exactly appear, but the fact that the equipment was operating normally preceding the fire and that the plaintiffs’ equipment was not on fire at the time the building was entered by the witness Smith, at which time the compressors were on fire and, also, a certain pole on which the wires were brought down to the compressor plant was on fire lays a sufficient basis for the jury to conclude that the fire was not the result of any defect in the electrical equipment of the compressor plant, even though the inspection referred to was made some little time preceding the fire. There is also testimony to the effect that, approximately a month preceding the fire additional ground wires were put in connecting the compressor plant with water-pipes and that this connecting with moisture constituted a proper equipment or installation of ground wires. It may be here stated that all the testimony shows that a ground wire to be efficient and to afford protection must be connected with moisture. The testimony shows that the strength of the fuses employed were 30 amperes; that some time previous to the fire the fuses had been blowing out and the heavier or 30 ampere fuses were installed. There was also testimony to the effect that where 30 ampere coils or fuses were in use, the circuit-breakers would be normally set at 30 amperes. The circuit-breaker is supposed to kick out when an overload occurs, or a defect occurs in the system. It would appear from the testimony and the jury would be justified in concluding that if the fuses or coils installed are too large, the circuit-breaker would kick out before the fuses would give way, or blow up, as the expression is used in the testimony.

This witness did not know at what amperage the breaker was set; that they had arranged for setting breakers; that there was a special man from the department who set the breakers; that they had what was considered about 30 ampere current coils; that if a transformer was overloaded and the fuses did not blow out, the current would go back to the substation and usually kick out the circuit-breaker; that when the breaker kicked out, there would be no alternating current on the line. The witness stated that he was pretty sure the breaker kicked out that morning, as he saw a record of the station afterward; that he did not remember whether the breakers opened more than once. There was testimony that 30 ampere fuses would carry approximately 400 horse-power; that 50 horse-power was all that plaintiffs used at any one time. There was further testimony that 30 ampere fuses would support between 430 and 440 horsepower ; that the compressor plant was equipped with two motors totaling 80 horse-power. This testimony was presented to the jury in order that it might conclude that the fuses were from two to two and one-half times as strong as necessary. There was testimony to the effect that the maximum starting horse-power used was from 125 to 150 and that if both motors were used the demand would be from 185 to 210 horse-power. From this it is argued, and it appears that the jury would be entitled to conclude, that if the fuses installed and maintained by the defendant between the

There was also testimony to the effect that the motors in the plaintiff’s plant were not burned by electricity, but were burned by external heat. There was also testimony to the effect that by reason of the equipment maintained by the defendant the 11,000 volts were sent directly into the plaintiffs’ starter; that this resulted from the primary and secondary wires coming into contact. There was also evidence to the effect that the wires from the transformers, which entered the plaintiffs’ buildings, entered through the side, and that portion of the building which was first described as being on fire by the witness Smith, when he first reached the plant when it was on fire. There was also testimony to the effect that the starting switch or handle was in starting position in the plaintiffs’ plant after the fire and also that the springs which would hold the switch out of position were burned or weakened by the fire so as to permit the switch or handle to coiné back into a starting position. There was also considerable testimony introduced that the plate used by the defendant in its grounding system would

A great deal of testimony was introduced concerning the condition of wires, evidence that the plant burned down and theories advanced based thereon, but it would serve no useful purpose to recount the same here, as it does not affect materially the testimony which we have hereinbefore referred to, and while no actual witness saw the beginning of the fire, we think the testimony taken as a whole justified the jury in coming to the conclusion that the fire resulted from the improper equipment, as alleged in plaintiffs’ complaint. The evidence in this ease is really not conflicting in the true sense of the word; the opinions, theories, and conclusions drawn from the evidence show only a difference. There is no conflict as to the size of the fuses, no dispute as to the 11,000 volts carried, as to what would happen if the 11,000 volts on the main line were transmitted to the secondary wires, no controversy as to ground wires being necessary to afford pro

Prom the foregoing we must hold that the contention of the appellant that the evidence is insufficient to support the verdict on the question of negligence of installation, maintenance, and operation of the defendant’s plant is not well taken.

[5] It is finally contended that the court erred in the giving of certain instructions to the jury and that this error on the part of the court resulted in a miscarriage of justice. The instruction given by the court at the request of the plaintiff first called to our attention is as follows: “You are not bound to decide in conformity with the testimony of any number of witnesses which do not produce conviction in your minds against a less number or against a presumption or inference which you may draw from the evidence satisfying your minds.”

■Subdivision 2 of section 2061 of the Code of Civil Procedure permits juries to be instructed on all proper occasions that they are not bound to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds against a less number, or against a presumption or other evidence satisfying their minds. The change in the instruction from the wording of the code is in that following the word “presumption.” In the instruction this language is used: “or inference which you may draw from the evidence satisfying your minds,” instead of “or other evidence satisfying your minds.” In support of this contention that the wording of the instruction as given to the jury is erroneous, appellant relies upon the case of Everett v. Standard Acc. Ins. Co., 45 Cal. App. 332 [ 187 Pac. 996 ], where it is said: “Unless these pre

[6] Appellant also argues that the court erred in giving to the jury the following instruction: “If you find from the evidence adduced in this case that the fire started at a

In considering the question of negligence as to the installation and maintenance of the apparatus just referred to and of the office of insulators, the court said: “The office intended to be performed by these circuit breakers and insulators on defendant’s wires at the point of connection with the wires going inside, was to control the current or prevent its doing damage in passing into the building. It further appeared that after the wires fell to the ground the ends were brought together and caused a spark showing that the current was then passing from the transformer over these wires. It appeared $.at the wires were insulated where they passed through the walls of the building and were at the time in place, and, so far as known, in good condition. And the evidence was that the fire did not start elsewhere than on the outside and at the point of connection as already explained. The evidence was that the fire could

In the case at bar the evidence is direct that there was no fire where the wires entered the side of the building covering the plaintiffs’ compressor plant; it is also direct that there was no fire in the motors or in any part of the apparatus controlling the operation of the compressor plant or mechanism; that the fire then existing in the compressor plant was burning the paper roof of the building and that the wires which went into the side of the building did not communicate or were not in contact with the paper roof that was on fire. The testimony is also direct that at the time of the arrival of the first witness, who reached the scene of the fire, the transformers were on fire; that the smoke was mounting therefrom approximately 200 feet into the air; that the pole from which the wires were brought down to the compressor plant was on fire, and, also, there is sufficient in the testimony to justify the conclusion that the burning oil in one of the transformers was sufficient to spread the fire to the plaintiffs’ buildings. In the case at bar it is not admitted by the defendant that the fire started in the transformers or on the pole down which the wires were brought and on which fuses were installed by the defendant, but the evidence which we have referred to amply justifies the conclusion that the fire started in that portion of the plant under the exclusive control and superintendence of the defendant, nor is there any evidence in the record indicating that the fire was caused by any other agency than the electricity carried on the defendant’s power lines and conducted through the transformers. In the case of Marovich v. Central Cal. Traction Co., 191 Cal. 295 [ 216 Pac. 595 ], the question of whether an instruction applying the doctrine of res ipsa loquitur should be given, we find the following: “The general rule is that where the plaintiff in his complaint gives the explanation of the cause of the accident, that is to say, where the plaintiff instead of relying

Had the case been submitted to the jury simply with the general instruction, which we have above quoted, we think reversible error would have been committed. Immediately following the giving of this general instruction the court proceeded to carefully and specifically point out to the jury that no verdict could be rendered against the defendant unless they found the defendant guilty of the particular acts of negligence alleged, as shown by the following instructions, which we quote:

Instruction No. 8.

“You are instructed that the mere fact of the accident and consequent injury to the property of plaintiffs raises no presumption of negligence, but the plaintiffs must show by independent evidence that the accident was due to want of ordinary care on the part of the defendant and without any contributory negligence on the part of plaintiffs or their employees.”

Instruction No. 12.

“The plaintiffs have charged that the defendant was guilty of negligence in three respects, namely:

“ (1) In installing transformers improperly and insufficiently grounded.

“(2) In installing fuses between its transformers and power lines of such size and strength as to afford inadequate or no protection to plaintiffs’ property against excessive voltage.

“(3) In holding closed the breakers at its substation for several minutes after they had kicked out.

“All of these charges of negligence defendant has denied.

“I instruct you that a recovery may be had by plaintiffs, if at all, only on the charges of negligence pleaded. ‘No recovery can be had on acts of negligence, or upon negligent conduct not alleged, as a defendant in such an action is entitled to know by the pleadings just what he is called upon to meet.’ (Brown v. Northern Cal. Power Co., 14 Cal. App. 651 , 655 [ 114 Pac. 54 , 74].)

Instruction No. 13.

“If you find it to be a fact that plaintiffs’ property was set on fire by means of electric current on the 29th day of July, 1923> it does not necessarily follow therefrom that your verdict should be in favor of plaintiffs and against defendant. You should not return your verdict against the defendant in this ease unless you find by a preponderance of evidence the defendant to have been guilty of some negligence charged in the complaint which contributed directly and proximately to the burning of this property. The defendant is not liable if the plaintiffs’ property was set on fire by an electric current without negligence on the part of defendant.”

Instruction No. 14.

“In proving the cause of action set out in the complaint, the burden of proof is on plaintiff to show first, that said buildings were set on fire by means of an electric current; second, that the fire thus caused was the result of one or more of the acts or omission to act on the part of the defendant as set out in plaintiffs’ complaint, and, third, that this act or acts or the omission to act by the defendant was negligence on its part.”

Instruction No. 15.

“If all of the evidence, fairly considered, leaves this matter in doubt, so that you are left to guess or conjecture as to whether the fire was caused by an act of negligence on

the part of the defendant as set out in the complaint or in some other way, there can be no recovery by the plaintiffs and your verdict on the complaint of plaintiff and the answer of defendant must be for the defendant.” (Clifford v. M. St. P. & S. S. M. R. Co., 105 Wis. 619 [ 81 N. W. 143 ].)

Instruction No. 16.

“I instruct you that you will have no right to find a verdict against defendant and in favor of plaintiffs solely because the defendant was furnishing electricity to plaintiffs to be used by plaintiffs in their compressor house, even though you find as a fact that the fire that destroyed said buildings was caused by electricity. Defendant in supplying electricity to plaintiffs’ buildings did not guarantee that said buildings would not be set on fire from the electricity.”

In view of the rule that instructions must be considered as a whole and that the error in the instruction is cured if, when the whole charge is taken together, the law is accurately stated, we are of the opinion that the jury in this case was not misled by the giving of the instruction complained of. By reason of the fact that the jury was instructed over and over again that the specific negligence alleged must be proved by a preponderance of the evidence before the plaintiff was entitled to recover, the general language in the instruction alleged to be erroneous was limited and applied to instructions pertaining to the installation and maintenance of the particular portion or part of the equipment alleged in the complaint, as constituting the gravamen of the charge of negligence. It does not appear from the record that general negligence on the part of the defendant was urged before the jury either in the introduction of testimony or in the argument of counsel, and, therefore, the instructions which we have quoted, and especially number 15, limits the general instruction alleged to be error to the specific acts alleged in the complaint, from which we conclude that no prejudice resulted to the defendant, even though measured by the rule announced in Marovich v. Central Cal. Traction Co., supra, the instruction should not have been given. Error is also alleged in relation to a few of the other instructions given by the trial

The judgment of the trial court is affirmed.

Thompson, J., pro tom., and Finch, P. J., concurred.

A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 18, 1927.