
    25598.
    STEWART v. BRASELTON IMPROVEMENT CO. et al.
    
    Decided November 16, 1936.
    
      
      C. B. Stewart, Poole & Fraser, for plaintiff.
    
      J. S. Ayers, Fnvin, Fnvin & Fix, Colquitt, MacBougald, Trout-man & Arkwright, fox defendants.
   Stephens, J.

Where uninsulated electric wires, which are charged with 2300 volts of electricity to supply electric motor power for the operation of a cotton-gin, are strung from a trunk-wire of a company which supplies electricity, across the property of the owner of the gin, to the gin-house, and pass through the limbs of a tree located on the property of the owner of the gin, and where, due to the swaying of the wires in the branches of the tree caused by the wind, the wires from time to time come in contact with the branches of the tree and cause the branches of the tree to become charged with electricity, and where it is a custom for patrons of the gin to bring cotton to the gin in wagons in which the cotton is piled high, and, in approaching the gin-house for the purpose of delivering the cotton to the gin, to drive the wagon under the tree, and people who are on top of the cotton in the wagon would come in contact with the branches of the tree, and all of these facts are known to both the owner and operator of the gin and the electric company which furnishes the electricity; and where, while one of the wagons, which is piled high with cotton which is being brought to the gin for the purpose of being ginned, is standing under the tree awaiting its turn to discharge its cotton, a person on the top of the cotton comes in contact with the overhanging branches of the tree which are charged with electricity from coming in contact with the uninsulated wires as indicated, and receives an electric shock which kills him, the homicide may be proximately caused by the negligence of the owner of the gin in maintaining the wires in an uninsulated condition charged with electricity, and the negligence of the electric company in furnishing the electricity through the wires. The petition, in a suit brought by a plaintiff who had the right to recover for the tortious homicide of the deceased, against both the electric company and the owner of the gin, to recover damages for the homicide of the deceased, in which the above facts are alleged as negligence proximately causing the homicide, set out a cause of action against both defendants as joint tort-feasors. The petition was not subject to demurrer on tlie ground of a misjoinder of parties defendant, or on the ground that tlie petition failed to set out a cause of action. Tlie judge erred in sustaining the demurrer and dismissing the action.

Judgment reversed.

Jenkins, P. J., and Sutton, J., concur.  