In his petition for rehearing plaintiff urges as ground therefor that, in the opinion heretofore rendered, the court invaded the province of the jury in dealing with the facts concerning the defendant, Pacific Gas Electric Company. The petition states: "The court may possibly be right in its view of the evidence as indicated in its statement of facts, which on the basis of lack of control of the electrical company, and complete control by the mining company, would exempt the electrical company from liability and hold the mining company liable. But where did the court get its right to usurp the functions of the jury and, in effect, weigh this evidence at all?" We neither claimed nor exercised such right. There was no pretense by plaintiff that the electric company had any control of the electricity beyond the switch that allowed the current to pass to the transformers, and there was not a particle of evidence tending to show any control of the current by the electric company after it was received by the mining company and passed into the transformers erected by and under the exclusive control of the latter, as were all the appliances erected to utilize the current. Indeed, this state of facts appeared in plaintiff's complaint. There being no controversy as to these facts it was clearly within the province of the court to determine as matter of law therefrom whether they gave rise to any liability on the part of the electric company. It was upon this undisputed condition of the pleadings and evidence that we assumed to express our view of the law which we still think was within our province as it was also within the province of the trial court.
Petitioner cites the recent case, decided since the briefs were filed, of Augusta Ry. Elec. Co. v. Beagles,12 Ga. App. 849, [78 S.E. 949], as "precisely controverting the position advanced in the opinion." Plaintiff in error was the defendant in the action. Among the averments of the petitioner (complainant) he alleged that the electric company (defendant) "permitted a high and dangerous voltage to be transmitted to the secondary wires in said plant, rendering *Page 805 it dangerous for him to handle said lights, and that he was unaware of the existence of this dangerous condition"; that "it permitted its transformer, connecting the primary with the secondary wire entering the plant, to become and remain out of repair, without sufficient insulation and in a burnt-out or punctured condition, so that electricity escaped therefrom and became grounded and liable to be communicated to persons using the electric light lamps on the secondary wire." In its opinion the court called attention to the evidence tending to show that the light socket was defective which might have caused the injury and for this the lumber company alone was responsible. But said the court: "There was evidence also which tended to support the theory of the petition on the question of negligence. There was positive evidence that the primary (in charge of the electric company) and secondary wires had been permitted to come in contact with each other outside of the plant or the transformer, and by this contact the full current carried by the primary wires had been transmitted to the secondary wires and on into the plant." The trial court in that case instructed the jury — and correctly, as the appellate court seems to have intimated — "that defendant would not be liable for any injury that was received from defective appliances or wires inside of the plant, but that the electric company was only responsible for the condition of the wires outside of the lumber plant." This case, instead of "precisely controverting" the view taken in our opinion, is in perfect harmony with it.
Of course, as there was conflicting evidence, as shown in the review of the case, upon all the theories advanced, the court properly held that it was for the jury to determine the facts. Petitioner seems unable to comprehend the proposition that where the facts are undisputed the court may determine, as matter of law, that they are wholly insufficient to give rise to any legal liability.
Petitioner reiterates a point we did not heretofore consider — namely — that electricity is incapable of being made the subject of purchase and sale. The point is disposed of very satisfactorily in Terrace Water Co. v. San Antonio Elec. Co.,1 Cal.App. 511, [82 P. 562], as follows: "There may be ownership of all inanimate things which are capable of appropriation *Page 806 by manual delivery. (Civ. Code, sec. 655). . . . It may be regarded as a solecism to say that one may own a thing not susceptible of definition and the nature and character of which is practically unknown, yet when one gathers from the elements an energy or force which he may store, transmit, and utilize, he thereby appropriates to his own use that thing, whatever it may be, and it is a subject of ownership, of barter and sale, so long as it is in his possession."
The petition is denied.
Hart, J., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 22, 1913.