Gurley v. Southern Power Co. , 172 N.C. 690 ( 1916 )

CLARK, C. J., dissents in part. 1. Was the death of the plaintiff's intestate caused by the negligence of the defendants, as alleged in the complaint? Answer: "Yes; both of them."

(691) 2. What damage, if any, is plaintiff entitled to recover of defendant? Answer: "$10,000."

From the judgment rendered, defendants appealed. This is an action by the administratrix of Samuel Shropshire, a boy of 13 or 14, who was drowned in a tank at a substation of the Southern Power Company at High Point. In this substation there is a reservoir, the walls of which are made of cement, which tank is 30 feet long, 35 feet wide, and 11 feet deep. The sides are straight down, very slick, and with moss on them. A wire ran along the top of the walls of the bank, about 10 inches above it, fastened to iron rods extending out of the cement wall. Another wire extended from side to side about the center of the tank. This tank is about 15 feet from the wall of the substation and about that distance from its nearest door. On the day in question the tank lacked 6 or 8 inches of being full of water.

On Sunday, 30 May, 1915, plaintiff's intestate, together with a 12-year-old boy, went to this substation, passed through the gate, saw the defendant Howard, who had charge of the premises, paid him 10 cents apiece for their bathing suits, and went into this tank. Bathing suits were kept at the substation by Howard and furnished all boys desiring them. They were charged 10 cents each. When the intestate went in there were eleven or twelve boys then in the pool swimming or playing in the water.

The defendant power company requested the following instruction:

"If you find from the evidence that when the Southern Power Company inclosed the pool, through one of its servants, Moser, it directed Edwards to cease to use the pool as a bathing pool, and thereafter it was run secretly, in a secret manner as far as the Southern Power Company was concerned, and unknown to the Southern Power Company or any of its officers, and purposely concealed from the Southern Power Company, then I charge you that Southern Power company would not, in any wise, be responsible for the death of the plaintiff's intestate; and if you should answer the first issues ``Yes,' you will go further and find, when you come to designate the defendant whose negligence was the cause of the death of the plaintiff's intestate, ``the defendant Howard.'" That there is ample evidence to support the instruction tendered does not seem to be disputed.

This prayer was not given either in words or substance. It is (692) undisputed that Howard was running the pool for himself, and not for the power company, and that he alone received the emoluments. If, as the sixth request required the jury to find, Howard was acting secretly, without the knowledge of the power company and contrary to its instructions, purposely concealing his conduct, then he was not acting as its agent, and the company can only be liable for the tort simply because it owned the pool.

The doctrine of dangerous instrumentalities and attractive nuisances cannot justify the refusal to give the sixth prayer. It is irrelevant to the case for the reason that the pool is neither, and so held by the overwhelming weight of authority.

It is said, 29 Cyc., p. 464, that, "As to pools or reservoirs, the weight of authority is that they are not to be classed with turntables, and the owner of premises on which a pool or reservoir is situated is under no obligation to keep the premises guarded against the trespasses of children. " Thompson v. Ill. Central Ry., 105 Miss. 636; Peters v. Bowman,115 Cal. 345; Stendall v. Boyd, 73 Minn. 53;Moran v. Car Co., 134 Mo., 641; Richards v. Connel, 45 Neb. 467;Klix v. Nieman, 68 Wis. 271; R. R., v. Beaver,113 Ga. 398; Riggle v. Lens, 71 Or. 125; McCabe v.Woolen Co., 124 Fed., 283; affirmed in 132 Fed., 1006; Sullivan v.Hidekopper, 27 App. D.C. 154; R. R., v. Moore, (Tex.Civ.App.)172 S.W. 568; Emard v. Kimberly, 159 Wis. 83;Charvoz v. Salt Lake City, 42 Utah 455.

We do not undertake to quote from these decisions. They all deal with the subject under discussion and hold that a pond or reservoir is not a dangerous instrumentality or an attractive nuisance. In almost every case the owner of the premises knew of the custom of boys entering thereon to bathe in the pool or pond, but was held not liable for any mishap. Bathing pools are nothing new or rare. They abound in almost every public park, gymnasium, and Y. M. C. A. building, as well as many country clubs. It is a well known and general custom for boys to swim in millponds and invade the lands of farmers to bathe in their marl pits. Who will contend that the mill owner and farmer is liable for death or injury of the bathers because of such ownership? Millponds, swimming holes, and marl pits are equally as attractive to boys for bathing purposes as this particular reservoir.

The only other ground of liability as to the power company is the doctrine of respondeat superior. If the jury had found the facts (all supported by evidence) as set out in the sixth request, the power company should have been acquitted of responsibility. The reservoir in which the intestate of the plaintiff was drowned was built in 1909 (693) as a necessary part of the substation of the defendant power company. It was properly constructed and was not dangerous when used for the purposes for which it was intended.

In 1911 the power company built a substantial fence around its substation, inclosing the reservoir, and hearing that persons had been swimming in it, instructed its agent in charge of the substation to discontinue this practice and not to permit any one to enter the inclosure. It also caused a notice of "No admittance" to be placed on the gate. The agent at the substation disobeyed these instructions, and in consequence the intestate of the plaintiff lost his life.

It also appears, if the evidence of the defendant is true, that it was not necessary for the officers of the company to visit the station except at regular monthly intervals, and at other times when notified by the man at the station that repairs were needed; so that the man in charge knew at all times when to expect the officers of the company, and he testifies that he purposely deceived the company, that he was permitting boys to swim in the reservoir secretly and against the instructions of the company, and that he hid the bathing suits and other bathing outfit when officers of the company were expected.

If the jury should accept this evidence (and they alone have the power to pass on its credibility), the defendant power company ought not to be held liable for the negligence of its agent, because it was outside of the scope of his employment. The defendant had the right to have this view presented to the jury, which it endeavored to have done in the prayer for instruction which was denied. This Court said in Roberts v. R. R.,143 N.C. 176: "The test is not whether the act was done while . . . (the servant) was on duty, or engaged in his duties; but it was done within the scope of his employment and in the prosecution and furtherance of the business which it was given him to do?"

In Bucken v. R. R., 157 N.C. 443: "We recognize the well established rule that the master is not responsible for the tort of his servant when done without his authority and not for the purpose of executing his orders or doing his work, but wholly for the servant's own purposes and in pursuit of his private and personal ends."

In Dover v. Mfg. Co., 157 N.C. 324: "In an action for tort, in the nature of an action on the case, the master is not responsible if the wrong done by the servant is done without his authority and not for the purpose of executing his orders or doing his work. So that if the servant, wholly for a purpose of his own, disregarding the object for which he is employed, and not intending by his act to execute it, does an injury to another, not within the scope of his employment, the master is not liable."

Again: "This doctrine of respondeat superior, as it is now established, is a just but a hard rule. The master exercises care in (694) the selection of his servant and retains in his service only such servants as are prudent and trustworthy; the servant in the prosecution of the master's business must of necessity pass beyond his sight and out of his control; and yet the law makes the master liable for the conduct of the servant. The application of this principle without working the greatest injustice to every employer of a servant is made possible only by the limitation established by the courts, that when the servant does an act which is not within the scope of his employment the master is not liable. ``Beyond the scope of his employment the servant is as much a stranger to the master as any third person, and his act in that case cannot be regarded as the act of the master. The rule as it is now established by the later judicial declarations should be strictly held within its defined limits. It is a rule capable of great abuse and much hardship, and the courts should guard against its extension or misapplication.'"

Linville v. Nissen, 162 N.C. 95, is also strictly analogous to the present case. The Chief Justice, who wrote the opinion for the Court, cited and approved Bucken's case and Dover's case. He further lays down this very pertinent rule, with ample citation of authority: "The owner of an automobile is not liable for personal injuries caused by it, merely because of his ownership."

In Shearman and Redfield on Neg. (6 Ed.), sec. 173, it is said: "There is nothing in the nature of real property which requires that its owner should be held to a stricter liability than the owner of personal property, and he is not, therefore, responsible for the negligence of persons employed upon his land, any further than he would be if they were employed about his chattels." Marlowe v. Bland, 154 N.C. 140; Jackson v. Tel. Co., 139 N.C. 347; Daniel v. R. R., 136 N.C. 517, are cases cited in point. Also, Labatt Master and Servant, sec. 2274.

We can conceive of only one answer to this position, and that is that the prayer is in itself defective in that the idea is excluded that the defendant might have known of the use being made of the reservoir by the exercise of ordinary care, but there is evidence that the use of the pool was secret and concealed from the defendant and unknown to it (facts embraced in the prayer), and the defendant was nowhere given the benefit of it in any part of the charge.

The defendant power company excepts to the following charge on the last issue as to damages: "The measure of damages is the present value of the net pecuniary worth of the intestate to be ascertained by deducting the cost of his own living and expenditures from the gross income, based upon his life expectancy." This charge was evidently quoted by (695) the judge from the opinion in Mendenhall v. R. R., 123 N.C. at p. 278, which has been approved often by this Court (see Anno. Ed.), down to Ward v. R. R., 161, at p. 186, and Massey v. R. R.,169 N.C. 245.

The defendants contend that as the plaintiff's intestate was a minor, his parents would be entitled to the results of his labors until he was 21 years of age. Under our statute damages for wrongful death can be recovered only by the administratrix, Revisal, 59, 60; Killian v. R. R., 128 N.C. 261 (see Anno. Ed.). Besides, the plaintiff is his mother. It does not appear that his father is living. But if he were, the plaintiff as administratrix is the only party who can recover, and the question of the father's right to share in the recovery for the prospective wages up to 21 years would be a matter between him and the plaintiff, and is not before us. The question as to who would be entitled to a minor's wages where he survives (Williamsv. R. R., 121 N.C. 512) does not arise in an action for wrongful death, where only the administrator can maintain the action. Killian v. R. R.,supra, where this point was raised and decided.

In Russell v. Steamboat Co., 126 N.C. 967, the Court said: "We see no distinction in the law, nor reason for distinction, between the death of a child and of an adult. The measure of damages is the same; but we frankly admit that the difficulty of its application is greatly increased in the case of an infant. Still the jury must do the best they can, taking into consideration all the circumstances surrounding the life that is lost, and relying upon their common knowledge and common sense to determine the weight and effect of the evidence." The court so charged the jury, and if the Southern Power Company desired more definite or specific instructions it was its duty to ask a special instruction. The charge in regard to measure of damages is in exact accordance with the precedents of this Court.

An action for the recovery of wages of a minor or for injury to him lies in favor of the parent; but if the child dies from the injury the action abates. The only action that lies in such case, in this State, is for wrongful death, as authorized by Revisal 59, and that embraces everything. In such action the value of the life before 21 as well as after 21 years of age is recoverable. No other action lies than this. Killian v. R. R.,128 N.C. 262. In Davis v. R. R., 136 N.C. 115, the subject is again discussed, the Court holding: "An action may be maintained by an administrator for the death of an infant by the wrongful act of another." This case was reviewed and reaffirmed in Carter v. R. R., 138 N.C. 750.

In Bolick v. R. R., 138 N.C. 370, the Court held that even if the action for injuries was brought, yet if it results in death, it abates, and for wrongful death no action could be maintained except that (696) brought by the administrator, which, of course, covers the entire value of the life that was lost. In Russell v. Steamboat Co., supra, the child was only 5 months old; see authorities there cited on p. 968. Whatever may be the rule elsewhere, and it varies greatly in other States, the rule is well settled by our statute and our uniform decisions that there can only be one action brought for wrongful death, and that must be by the administrator and covers the entire value in one action.

The motion to nonsuit made by the Southern Power Company was properly denied. The defendant Howard, so far as the record discloses, made no such motion, took no exceptions, and assigned no errors. As to him the judgment is affirmed. As to the Southern Power Company, there must be a

New trial.