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District Court of Appeal, Third District, California.


Civ. 6318

Decided: September 18, 1940

John J. Briare, Frederick Searls, and W.H. Spaulding, all of San Francisco, for appellant Pacific Gas & Electric Co. Wm. M. Maxfield and Jos. F. Aleck, Jr., both of San Francisco, and A.J. Just, of Downieville, for respondent Irelan–Yuba Gold Quartz Mining Co. Clinton E. Harber, of Sacramento, and Lynne Kelly, of Grass Valley, for respondent Socorro Mines, Inc.

The defendant, Pacific Gas & Electric Company appeals from a judgment entered pursuant to a verdict in favor of the respondents for damages suffered as a result of a fire caused by a tree breaking and falling across certain high power electric wires. The plaintiff, Irelan–Yuba Gold Quartz Mining Company, as cross-appellant, appeals on the same record from an order of the trial court denying its motion for a new trial as to the defendant, Socorro Mines, Incorporated.

In substance, the facts are as follows: The defendant, Pacific Gas & Electric Company, maintains a substation at Alleghany in the mining section of Sierra county, from which substation several high power electric lines run to the various mines operated in that vicinity. Among the lines is one known as the “Alleghany–Spanish Mine Line”, which extends from the substation to the Spanish Mine in Nevada county. At a point on this line, near the Irelan–Yuba Gold Quartz Mine, a branch line takes off to the Plumbago Mine, a distance of approximately two-thirds of a mile, and referred to as the “Plumbago Tap Line” or “Branch Line”, upon which line right of way the fire occurred.

The Plumbago Mine is owned by the defendant, Croesus Gold Mining Company, although it had not been operated by the owner for many years. In 1933 the owner leased the mine to the Yuba–Sierra Development Company, which operated it for a period of time, during which they constructed the “Plumbago Tap Line” for the purpose of supplying the mine with electric power. This lease was subsequently abandoned by the lessee, and at the trial it was stipulated that the tap line was owned by the Croesus Gold Mining Company, the owner of the mine. In 1935 the defendant Socorro Mines Incorporated, came into possession of the Plumbago Mine under an assigned lease, which covered the mining claims “together with the improvements, equipment and appurtenances”, and were operating the property under said lease at the time of the fire here complained of.

At about 11 o'clock a.m. on the 16th day of October, 1936, during an unusually high wind, a pine tree approximately fifty to sixty feet in height broke off at about twenty-five to thirty feet from the ground and fell across the transmission lines, breaking two of them, the sparks from which ignited the dry leaves and grass upon the right of way and spread to the underbrush, resulting in a forest fire which covered an area of some twenty-two hundred acres, destroying in its path the property of plaintiffs, consisting of timber, mine buildings, personal property and equipment.

The trial was had before the court sitting with a jury. A judgment of nonsuit was granted the defendant Croesus Gold Mining Company, owner of the mine, and by stipulation the action was dismissed as to all other defendants, except the Pacific Gas & Electric Company and the Socorro Mines Incorporated. The jury returned a verdict in favor of the plaintiffs and against the defendant Pacific Gas & Electric Company, in an amount slightly in excess of twenty thousand ($20,000) dollars, upon which verdict judgment was entered. The jury failed, however, to bring in a verdict as to the defendant Socorro Mines Incorporated, and it is in this respect that the cross-appeal has been taken by the plaintiff Irelan–Yuba Gold Quartz Mining Company.

The record does not disclose under what terms or conditions the Pacific Gas & Electric Company delivered electric current to any prior lessee, although it is conceded that it had no proprietary interest in this “Plumbago Tap Line”.

Under the service contract which was introduced in evidence, the defendant Pacific Gas & Electric Company, agreed to sell and deliver to the defendant Socorro Mines Incorporated, the lessee of the property, 2300 volts of electric current to be “delivered by the Power Company to the consumer from the Power Company's transformer at a convenient place to be designated by the consumer, subject, however, to the approval of the Power Company, and delivery of energy hereunder shall commence on date of first service”. The transformer and a meter were accordingly installed at the mine, the end of the tap line, and stepped the current of 6900 volts, which passed along the tap line, down to the required 2300 volts for the use of the consumer, Socorro Mines Incorporated. Appellants contend that this equipment was installed at the mine instead of at the junction of the tap line with the main line, for the purpose of saving the consumer the added cost of the line loss in transmission over the tap line.

All of the main lines at the substation were connected through circuit breakers, the Spanish mine line being controlled by a circuit breaker of ninety-six amperage capacity. Upon a pole on the tap line near the junction above referred to, a set of thirty ampere fuses was installed.

The defendant and appellant, Pacific Gas & Electric Company, contends that there was no proof that the cause of the fire was due to the failure of either the fuses or the circuit breaker to function; that there was no suggestion of evidence of any negligence on its part in the installation or maintenance of said substation, equipment therein, or in any of its lines; that the sole basis of claim of negligence is its failure to anticipate that a gale would break a tree over the wires of the tap line and cause a fire.

Plaintiffs' case was presented upon the theories, first: that the circuit breaker at the substation did function, that is, did trip out, upon the breaking of the wires, and must have been reset by an employee of the defendant company, without first inspecting the line to determine the cause of the trouble, thus restoring the current to the broken wires and igniting the leaves and brush, or, on the other hand, that if it did not function it was because of the fact that the 96 amperage capacity, at which it was set, was too high, thus preventing the short, caused by the breaking of the wires, from tripping the circuit breaker and shutting off the current.

In addition, the plaintiffs claim negligence in the operation and maintenance of the branch or tap line.

The volt meter chart maintained by the defendant Pacific Gas & Electric Company, at the substation, and introduced in evidence, shows a drop in voltage on the Spanish mine line at about 11 o'clock a.m. on the day in question, and then a rise back to the normal voltage. Respondents contend that such action indicates most conclusively that the circuit breaker must have tripped out and was reset, particularly in view of the fact that several of the other circuit breakers at the substation did trip on the lesser voltage drops on that day. The evidence shows, however, that these latter circuit breakers were set at lower amperages, which is done in each instance according to the load necessary to be transmitted over the particular circuit, and in this connection the evidence further discloses that no fuses were involved between the source of the trouble, or short, and the several circuit breakers which functioned.

Respondents attach considerable importance to the evidence that the lights in the cookhouse at the Irelan Mine went out temporarily at about 11 o'clock a.m. on this day, contending that this also indicates action of the circuit breaker tripping out and being reset. The only witness who testified in this connection said: “The lights went out; I went outside to see what had happened; I thought the wind might have broken a line.” “Q. Where did you go when you went outside? A. Stepped right outside and looked around and went back into the kitchen and got my cup of coffee.” The witness then went to the compressor house, where he turned on the lights, and later when he returned to the cookhouse “in the neighborhood of twelve o'clock” to salvage the groceries, “the cook had the lights on again”.

It is more or less a matter of common knowledge that there may be many contributing causes affecting the ordinary house light on a rough day such as the one we are here concerned with. As the appellants have suggested, it is not at all improbable that the light globe, or the house fuse, may have burned out from excess current caused by the tap line wires breaking, and were replaced in the meantime by the cook.

It will be recalled that fuses of 30 amperage capacity were installed near the junction of the tap line with the main line, which point was between the substation and the fire. These fuses must have blown out before the circuit breaker could trip, in which event, the trouble having been disconnected from the main line, the circuit breaker would have no cause to function. On the other hand, if in any event, if did function, the resetting thereof could not operate to cause the wires to ignite the brush, for the reason that the blowing of the fuses would have disconnected the tap line from the main line. Furthermore, the expert testimony shows that a spark from one to three amperes at the voltage carried on this tap line would have started the fire. The rapidity with which the fire started, with the breaking of the tree, and undoubtedly before the short would blow out the fuses, is disclosed in the testimony of plaintiffs' witness, J.D. Holmes, who was engaged in cutting wood with his father not more than 150 to 200 feet from where the tree broke and the fire started. This testimony is as follows:

“Q. Did anything unusual occur on that day? A. Had a heavy wind on that day and a tree broke and struck the power line.

“Q. Did you see it break? A. No, I did not.

“Q. Did you hear it? A. I heard it, yes, and turned around.

“Q. What did you do when you turned around? A. I turned around and I saw the puff of smoke coming from there.

“Q. Where was the smoke coming from? A. From where the tree broke off.

“Q. Was it on the ground? A. Yes.” And again:

“Q. How long did it take you to get over there after you saw the smoke? A. A minute or less.

“Q. Did you run? A. Yes.

“Q. And you only had about two hundred feet down hill to go? A. Yes.

“Q. And by the time you got there, the fire was about twenty feet square? A. It was burning some grass and stuff on the ground there.”

From a careful examination of the record we are unable to agree with the respondents' theory that the Spanish mine line circuit breaker tripped out and was reset, thereby restoring the circuit and igniting the brush, or can we concur in the theory that if it did not function and trip out, there was negligence on the company's part in setting the circuit breaker at 96 amperage capacity, and the installation of 30 amperage fuses instead of 20 amperage fuses. The record lacks substantial evidence to support either claim, and is, in the main, more or less speculative and materially inadequate to support a judgment for damages based thereon.

Passing now to the question of the alleged negligent maintenance of the tap line, it is the contention of the appellant, Pacific Gas & Electric Company, that it did not own, control, or have any responsibility of the maintenance, operation or use of this tap or branch line, and therefore, any negligence in the maintenance thereof, cannot, as a matter of law, be chargeable to this defendant. The evidence shows, as already indicated, that this line was originally constructed by a private contractor for a former lessee of the Plumbago Mine, and at the time the fire occurred, was owned by the Croesus Gold Mining Company, the owner of the mine. The rule appears well established, not only in this jurisdiction, but generally, that where an electric company, furnishing current to the consumer, neither owns, nor controls the electric wires or other appliances which cause an injury, it is not liable for the damage claimed (9 R.C.L. 1204, sec. 15), but where control, or even joint control of the wires or appliances is reserved and exercised by the company furnishing the power, such company will be liable for a lack of due care. Roberts v. Pacific Gas & Electric Co., 102 Cal.App. 422, 283 P. 353, and cases therein cited; Scott v. Rome Ry. & Light Co., 22 Ga.App. 474, 96 S.E. 569.

The question for decision in this regard, therefore, is whether or not the appellant here exercised control, or even joint control, over this tap line.

In the Roberts case, supra, decided by this court, the defendant company was held liable. The company was using a branch line, belonging to the city of Chico, to serve a golf club, an independent consumer, at the other end of the line. The company had erected a system of poles and wires in Bidwell Park for the city of Chico, under an agreement that when completed, that it should become the sole property of the city, except that the company reserved ownership of transformers, switches and meters. In passing upon the question of liability, the court says [102 Cal.App. 422, 283 P. 356]: “It is ordinarily true that a company which neither owns nor controls the wires or appliances over which it merely transmits electric energy is not obliged to inspect the line, and will not be liable for injuries sustained by reason of defective appliances. 9 R.C.L. 1204, § 15; Hoffman v. Leavenworth L.H. & P. Co., 91 Kan. 450, 138 P. 632, 50 L.R.A.(N.S.) 574, Memphis Cons. Gas & Elec. Co. v. Speers, 113 Tenn. 83, 81 S.W. 595; Bristol Gas & Elec. Co. v. Deckard [6 Cir.], 10 F.(2d) 66. Except for the reservation of control and use of the appliances and line to supply the golf club with light and power, the electric company would have been relieved of responsibility. But when control, or even joint control, of an electric line is reserved and exercised as in the present case, the electric company will be liable for a lack of due care.”

As we have seen, the service contract heretofore mentioned, provides that the 2300 volt current shall be delivered by the company from its transformers and meters to the consumer at a convenient place to be designated by the consumer, subject to approval of the company. Accordingly, the transformer and meter were located at the opposite end of the tap line from where it intersects the company's main line, that is, at the Plumbago Mine. We do not consider the circumstances of the location of the transformer and meter as controlling upon the question here to be determined. The record discloses that at no time did the Pacific Gas & Electric Company exercise supervision or inspection of this tap line. It was constructed, in so far as the record shows, in a proper manner, by a former lessee of the mine, owned by the mine at the time the fire occurred, and its use was at all times for the sole benefit of the one mine, and those who were beneficially interested in the working thereof. The instant case differs substantially from the facts involved in the Roberts case, supra, in that there, the power company, not only made certain reservations, but also used the line as a medium for the service of power to an independent third party consumer at the end of the line.

We conclude, therefore, that the evidence contained in the record upon the question of control, or joint control of the tap line by the Pacific Gas & Electric Company, is legally insufficient to establish that essential fact.

In view of the conclusion which we have reached herein, it becomes unnecessary to consider or discuss other questions which have been raised and argued in the briefs. As to the cross-appeal presented upon the record, the case is still at issue and undetermined in so far as the defendant Socorro Mines Incorporated is concerned. The verdict returned was complete as to the defendant Pacific Gas & Electric Company, but was no verdict at all as to the defendant Socorro Mines Incorporated. Plaintiffs' failure to call to the court's attention the circumstance that the verdict was silent as to one of the two defendants separately answering is not a waiver or an abandonment of the cause presented by the issues raised. Rankin v. Central Pac. R.R. Co., 73 Cal. 93, 15 P. 57; Benson v. Southern Pac. Co., 177 Cal. 777, 171 P. 948.

The judgment is reversed as to the defendant Pacific Gas & Electric Company, with directions to enter judgment for said defendant. The cause is remanded for further proceedings as to the defendant Socorro Mines Incorporated.

STEEL, Justice pro tem., delivered the opinion of the court.

We concur: PULLEN, P.J.; THOMPSON, J.