
    Dabbs v. Tennessee Valley Authority.
    
      (Nashville,
    
    December Term, 1951.)
    Opinion filed June 7, 1952.
    
      Wiggs & Humphreys, of Linden, and Walker & Hooker and Tyree B. Harris, all of Nashville, for plaintiff in error.
    Joseph C. Swidler, Charles J. McCarthy and Thomas A. Pedersen, all of Knoxville, for defendant in error.
   Mr. Justice Burnett

delivered the opinion of the Court.

Plaintiff sued the Tennessee Valley Authority and Meriwether Lewis Electric Cooperative for alleged negligence causing the electrocution of her husband, Joe S. Dabbs. The Tennessee Valley Authority demurred to the declaration on various grounds four of which were sustained by the trial judge and an order entered sustaining these grounds of the demurrer. At the time this order was entered the plaintiff prayed an appeal to this Court but did not perfect the same at the time. Some months later a voluntary non-suit was taken as to the Meriwether Lewis Electric Cooperative. The order praying an appeal from the action of the judge in sustaining the demurrer of the Tennessee Valley Authority was amended so as to make the order effective at that date and this appeal comes from this second order. A motion is made here by the Tennessee Valley Authority to dismiss the appeal because not perfected in time. We pretermit any action on this motion because we have concluded that the demurrer which was sustained by the judge should be sustained by us, at least on one ground thereof. We will pretermit any discussion of other grounds.

The declaration is in four counts and alleges in substance that the TVA generates and sells electricity to the Meriwether Lewis Electric Cooperative which, in turn, distributes tlie electricity to its various customers; that on October 22, 1949, one of tbe power lines, owned and operated and under tbe exclusive control of tbe Cooperative, broke and fell tbrougb the negligence of tbe Cooperative ; that tbe resulting spark set tbe grass and brush on fire in tbe vicinity of property belonging to tbe State of Tennessee; that tbe deceased, Joe S. Dabbs, was an employee of tbe 'State and that in tbe exercise of bis duties be went to tbe premises to put out the fire, but, without knowing that tbe line was down, stepped or tripped on it and was electrocuted. It is charged that tbe TYA sold electricity to tbe Cooperative and that tbe TYA was negligent in not cutting off tbe current it supplied to tbe Cooperative ’s system and in not maintaining an automatic switch in such a condition that it would cut off tbe current. There is no allegation that tbe TYA bad knowledge or notice of tbe break in tbe Cooperative’s line.

Tbe only allegations of negligence of tbe Tennessee Yalley Authority are: “That tbe Tennessee Valley Authority maintained an automatic switch at or near Parsons, Tennessee, which was supposed to cut off tbe flow of electricity in tbe event a major power line broke at a point past where said electricity went tbrougb said switch. That tbe point of tbe aforesaid break in tbe power line was beyond the switch when that said switch was situated between tbe break and the point at which tbe said electricity was generated.

“That, as a result of the negligence and carelessness of tbe defendant, Tennessee Valley Authority in failing to maintain and keep said switch in proper state of repair, tbe switch did not cut off immediately following the break in tbe power line but continued to be open and let electricity pass tbrougb it for a period of at least an hour and ■until it was manually pulled or cut off by the defendant or someone acting in its behalf.”

It is the general rule that where a company merely transmits its electric current from its lines to the consumer wires, which it did not install and does not control, that the company has no duty to inspect such wires and is not liable for injury caused by defects in them. Gas & Electric Co. v. Speers, 113 Tenn. 83, 81 S. W. 595; Annotation 134 A. L. R. 505-529.

This same principle is applicable where a generating company, which merely sells electric current to a distributing company, which in turn distributes such current to its customers, the generating company having no control over the wires and appliances of the distributing company is not liable for injuries or damages resulting from the condition of such wires and appliances. 134 A. L. R. 515.

But where the generating company knows of a defect in the lines of the distributing company it then becomes the duty of the generating company to stop and not to send its deadly current through the defective wiring of the distributing company. If it does not do so after knowledge or reasonable opportunity to learn of said break it is liable for injuries to persons or property caused by this breach of duty.

TJhere is no allegation in this declaration that the ownership or control of these wires was under the TVA. The allegation is that the wires “at the point aforesaid was under the exclusive control of the defendant Meri-wether Lewis Electric Cooperative”. Thus we see a complete absence of an essential factor to hold the Tennessee Valley Authority, that is, ownership-or control or notice. There is likewise no allegation that the Tennessee Valley Authority assumed or should have assumed any duty of inspection and maintenance of the lines’ of the Cooperative. Such an allegation, or proof in the case of the trial, would have been necessary. But since the Tennessee Yalley Authority did not assume this duty and had no notice of the defective condition of the wires of the Cooperative then it certainly would not be liable for sending’ its current into this defective wiring.

We have quoted above in full all the allegations of negligence that are contained in the declaration against the TYA. The declaration does not allege that the automatic switch at the Parsons sub-station was intended to protect the lines of the Cooperative; there is no allegation that TYA undertook to maintain that switch for the benefit of the Cooperative; there is no allegation that the Cooperative relied on the presence of the automatic switch. It certainly seems to us that in view of the demurrer, the action taken by the trial judge .and the liberality of our courts in allowing amendments, that if the proper allegations could be made in these things last mentioned, that then able counsel for the plaintiff would have made such allegations. Thus in the absence of these .allegations it seems a reasonable inference that the automatic switch was maintained by the TYA for the purpose of protecting its own lines and equipment and that it was never intended to operate in event of a break in the Cooperative’s line. White v. Nashville, C. & St. L. Railroad, 108 Tenn. 739, 70 S. W. 1030.

Where no allegations of an existing duty are made it follows that a failure to act can impose no liability on the one who fails to act. We use the word "duty” in the sense-of "legal duty”. This term "legal duty” is defined as "that which the law requires to be done or forborne to a determinate person, or to the public at large, and as correlative to a right vested in such determinate person or the public at large. ’ ’ Wharton Negligence, 2nd Edition, Sec. 24.

To hold the Tennessee Valley Authority liable under the allegations of this declaration would “Pressed to its legitimate conclusion, * * # would make an electric or a gas company an insurer against defects in appliances over which they had no control, and, to avoid liability, would impose upon them the duty of continued inspection of the wires and pipes of every customer supplied with their products. This would be a burden which no such company could bear and live; and it also would be a source of annoyance to its customers, which they would not long submit to.” Gas & Electric Co. v. Speers, supra [113 Tenn. 83, at p. 88, 81 S. W. 597].

Por the reasons above stated the trial court is affirmed with costs.  