
    Louisa Gordon and Joseph Gordon, as Administrators, etc., of Joseph Gordon, Jr., Deceased, Respondents, v. Eugene L. Ashley, Appellant.
    
      Negligence — liability for injury from, an electric wire maintained in connection with an electric plant owned by a corporation — the corporation’s vendor is not liable on the ground that the plant was under his control — a verdict against him, rendered on that theory cannot be sustained on the theory that he erected a public nuisance.
    
    Eugene L. Ashley, who had made a contract to light a village with electricity and had built a plant for that purpose, sold the plant to a corporation-of which he became the president and the holder of a large majority of its capital stock. The sole relation between Ashley and the corporation, so far as appeared, was that of vendor and vendee, and from the time of the transfer to it the corporation, with the consent of the village, operated the plant and performed the lighting contract. After such transfer a man was killed by coming in contact with an electric wire which had been negligently maintained in connection with the electric plant.
    
      Held, that Ashley could not be charged with liability for the accident on the ground that he was in control of the plant, notwithstanding that, under his contract with the village, he had no right to assign the contract to the corporation without the consent of the board of trustees evidenced by a resolution, and that such resolution was not passed until after the accident.
    A verdict, rendered on the theory that Ashley was in control of the plant, cannot be sustained on the theory that he erected a public nuisance, where no such claim was made in the complaint and no such question was submitted to or passed upon by the jury.
    Appeal by the defendant, Eugene L. Ashley, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Washington on the 18th day of May, 1901, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 18th day of May, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Richard Lockhart Hand, for the appellant.
    
      Lewis E. Carr and Edgar Hull, for the respondents.
   Parker, P. J.:

If there is any charge at all in this complaint that the defendant’s negligence caused the death of the plaintiffs’ intestate, it is that he negligently mcrnitamed the wire in question. It is the use of the wire that is complained of. No suggestion that the defendant had created a nuisance in a public place, which had resulted in the death of the intestate, can be found, and the case was sent to the jury on the former theory only. They were substantially told that unless the defendant had personal effective control of the electric light plant at the time of Gordon’s death so that it was his legal duty at his own expense to keep it in proper order, and that unless Gordon died from an electric current coming from a wire controlled and operated by the defendant, then the defendant was not liable for such death and the plaintiff could not recover.

This statement enunciates the rule of law upon which we must assume the jury acted, and which must control our decision upon this appeal.

The serious question presented, therefore, is whether the evidence warranted the conclusion which the jury reached, that the defendant Ashley had any such control and management of the plant at the time of Gordon’s death.

Ashley had taken a contract with the village of Whitehall to light it with electricity for five years, and he had built the plant in question. This contract was taken in February, 1898, and the plant seems to have been in operation some time in May of that year. It is manifest that, from the start, it was contemplated that a corporation should be formed to take and operate the plant, and in June, 1898, a corporation under the name of the “Kanes Falls Electric Company ” was fully organized, and from that time the plant was actually operated by such company. The defendant testified that immediately upon its organization he sold and transferred to such company all of such plant and took stock of such company in payment therefor. There is no evidence contradicting such statement ; undoubtedly the company thereafter received all the earnings of such plant, including payments from the village due for lighting it under its contract with Ashley. The stock seems to have been duly transferred to Ashley in payment therefor, and I think it clear that, under the evidence, the company, after Juné, 1898, must be deemed the owner as well as the operator of the plant. There is no evidence whatever suggesting any control or "relation between Ashley and the company other than that of vendor and vendee. There is no claim that the corporation was used as a pretense or cover by Ashley to avoid responsibility. The trial judge substantially told the jury that it was organized in good faith, and, in his opinion delivered upon denying the motion for a new trial, he treats it as an independent legal entity and thinks that this action might have been properly maintained against it. There is no suggestion in the evidence of any arrangement between Ashley and the company, whereby it was to act for him, or as his agent or employee, in lighting the village of Whitehall. It was a sale, and nothing but a sale, of the plant to the company. The company employed Parsons as its electrical engineer and West as its general manager, and I am of the opinion that the clear weight of evidence is to the effect that, at the time Gordon was killed, the company owned the plant and that it alone was operating it. That being so, the jury were clearly without warrant in concluding that Gordon died from the effects of electricity passing through a wire “ controlled and operated by ” Ashley, or that Ashley had the personal effective control of the electric light plant,” and so they were not warranted under the law of this case, as submitted to them by the court, to render a verdict for the plaintiff.

It is urged that Ashley had no right, under the terms of his contract, to assign his rights under it, without the consent of the board of trustees evidenced by a resolution to that effect, and that such resolution was not passed until after Gordon was killed. True. But nevertheless the company did purchase all the plant, and even if it thereby acquired no right to operate it in Whitehall, nevertheless it did actually operate it with the constant consent of the village. It is a distortion of the evidence to argue that because Ashley was so forbidden to sell, it must be assumed that the company was acting for him and was at all times under his control. No such arrangement was made between Ashley and the company, and, as a matter of fact, the village knew that the company was operating the plant, consented to such action and paid it for so doing. The rights, as between the village and Ashley or the company, under that contract, do not affect the question as to who had control of the wire that caused the death of Gordon. Nor does the fact that Ashley was president of the company and held a very large majority of the stock control that question. Whatever authority he had, or whatever act was done in that relation, was the act of the company, and for any negligent omission in that relation the company alone would be liable.

The trial judge has sustained the verdict upon the theory that Ashley erected a public nuisance by suspending this wire in the manner in which it was suspended, and that, therefore, he was liable for all injury resulting from its use.

It is sufficient to say that no such claim has been made in the complaint; no such fact has been charged against him therein, and no such question has been submitted to or passed upon by the jury. Whether the defendant could be held liable had the action been brought and tried upon such a theory, is not now before us. Upon the evidence appearing in this record I have very great doubts whether such a claim could be sustained, but it is sufficient here to say that we do not now consider it.

For the reasons above stated the judgment and order must be reversed and a new trial granted.

All concurred.

Judgment and order reversed on law and facts and new trial granted, with costs to appellant to abide event.  