Calkins v. Adams County Cooperative Electric Co.

Snell, J. This is a law action wherein plaintiff seeks damages for personal injuries. Defendant’s motion to dismiss was sustained and plaintiff appeals. Defendant is a corporation and owns and operates a transmission line for the purpose of selling and distributing electric energy. Plaintiff alleged that he was riding his horse and driving livestock along a road. He said that he and his horse came in contact with a guy wire attached to a pole in the transmission line of defendant and as a result he was thrown and injured. The petition then states: “Plaintiff does not set forth any specific acts of negligence on the part of the defendant which caused the damage and injury to the plaintiff, and the plaintiff relies in this action upon his allegation of general negligence and carelessness under section 489.15, Code of Iowa, 1962.” It should be noted that there is no claim of irregular installation of the guy wire, that it was out of place or line so as — 248 — to interfere with normal or anticipated traffic or was energized or electrically “hot.” The pertinent part of section 489.15, Code of Iowa, relied on by plaintiff, provides: “Injury to person or property. In case of injury to any person or property by any such transmission line, negligence will be presumed on the part of the person or corporation operating said line in causing said injury, but this presumption may be rebutted by proof.” By motion to dismiss for failure to state a cause of action defendant tendered three main points. "We summarize and paraphrase. 1. That the statute is applicable only to injuries, received from the transmission of electricity and does not apply to the poles or guy wires of an electric line. 2. That the statute if construed as sought by plaintiff would violate the due process clause of the Fourteenth Amendment of the Constitution of the United States, 3. That plaintiff made no claim of freedom from contributory negligence. We quote from the trial court’s ruling: “To find the meaning and effect of sec. 489.15 it is necessary to determine the legislative intent — to ascertain why the legislature chose to make, by a specific statute, an exception to the ordinary procedural rules of presumptions and burden of proof. It seems to this court that a special and extraordinary statute was adopted because of the special and extraordinary hazard and danger to persons and property created by the transmission of a dangerous substance, electrical energy. The utility undertakes to generate and transmit this dangerous substance; it does so by means of equipment aiid facilities under its control, therefore, its negligence is presumed, subject to rebuttal, if damages result from the escape of this substance, or from the transmission of an excessive charge. The poles, wires, guy wires themselves present no special or extraordinary hazard or danger. It is the conclusion of this court that the application of sec. 489.15 should be confined to the extraordinary hazards and dangers apprehended by the legislature, and that the facts — 249 — alleged in plaintiff’s petition are not within the purview of this statute.” On appeal two issues are tendered, they are: 1. The corn struction of the statute, and 2, the constitutionality of the statute if construed as claimed by plaintiff. I. The words “such transmission line” in the statute include the poles, wires, crossarms, guy wires, etc. of the transmission line. Iowa Railway & Light Corporation v. Lindsey, 211 Iowa 544, 550, 231 N.W. 461. See also special concurrence in Litchford v. Iowa-Illinois Gas and Electric Co., 247 Iowa 947, 955, 75 N.W.2d 346. In the Lindsey case section 489.15 was not involved. In Litehford plaintiff suffered bums caused by electricity. II. The presumption created by the legislature in section 489.15 has been applied in favor of injured parties on numerous occasions. Walters v. Iowa Electric Co., 203 Iowa 471, 212 N.W. 884; Beman v. Iowa Elec. Co., 205 Iowa 730, 218 N.W. 343; Isaacs v. Eastern Iowa Light & Power Cooperative, 236 Iowa 402, 19 N.W.2d 208; Litchford v. Iowa-Illinois Gas and Electric Co., supra. Defendant does not argue that the presumption was not properly applied in the cited eases. It is argued that all of those oases dealt with.injury from the electricity itself and that it was only in relation to such type of oases that the legislature intended to create the presumption. The trial court agreed and turned its opinion on that point. III. When so construed and limited the constitutionality of the statute is not challenged. Chapter 489, Code of Iowa, deals with electric transmission lines. Because of the inherent danger and special care required incident to the transmission of electricity special statutes are necessary and proper. However, to create a special rule for determining liability, when electricity had nothing to do with the injury, just because a guy wire is used to stabilize a pole belonging to an electric transmission company rather than to a telephone company, is an entirely different matter. Here there is no claim that electricity or the transmission thereof had anything to do with plaintiff’s injury. — 250 — Under the cases cited in Divisions I and II, supra, the situation in the ease at bar would be within the purview of the statute if electricity had anything to do with the injury. IY. The due process clause of Amendment 14 to the Constitution of the United States guarantees due process of law and proscribes the denial to any person “the equal protection of the laws.” A statute that creates an unreasonable discrimination contravenes the constitution. The rule, supported by numerous authorities, is stated in 16 Am. Jur.2d, Constitutional Law, section 551, as follows: “* * * due process of law and the equivalent phrase ‘law. of the land’ have frequently been defined to mean a general and public law operating equally on all persons in like circumstances, and not a partial or private law affecting the rights of a particular individual or class of individuals in a way in which the same rights of other persons are not affected. Under this guaranty not only must a statute embrace all persons in like situation, but the classification must be natural and reasonable, not arbitrary and capricious. Due process of law is denied when any particular person of a class or of the community is singled out for the imposition of restraint or burdens not imposed upon, and to be borne by, all of the class or of the community at large, unless the imposition or restraint is based upon existing distinctions that differentiate the particular individuals of the class to be affected from the body of the community. An act which affects only, 'and exhausts itself upon, a particular person or his rights and privileges, and has no relation to the community in general, is rather a sentence than a law and one which condemns without a hearing. It would seem that it may safely be stated as a general rule that whatever, in the matter of classification, complies with the requirements as to the equal protection of the laws will, so far as such an objection is concerned, be likewise upheld as 'amounting to due process of law. In fact, the courts frequently refer to both clauses at once in discussing the constitutionality of statutes.” In section 490 it is said: “Due process of law as guaranteed by the Fourteenth Amendment was defined in terms of the equal protection of the laws — that is, as being secured by laws operating on all alike, 'and not subjecting the individual to the arbi — 251 — trary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice.” The statute before us, if construed as sought by plaintiff, creates a demonstrable discrimination. Guy wires are commonly used to stabilize not only electric transmission line poles but telephone poles and corner fence posts. Plaintiff claims he and his horse came in contact with a guy wire. He was thrown from his horse and injured. Had the same thing happened because of contact with a guy wire attached to a telephone pole or a corner fence post there would be no presumption of negligence. Just because plaintiff came in contact with a particular guy wire that he does not even claim was anymore dangerous than other ordinary guy wires he claims the benefit of a special rule. It is plausibly argued that such a construction of the statute is within its wording. A cursory reading of the statute might lead to that conclusion but the result would be unsound and discriminatory. It is clear that the statute is fairly open to construction. It might be argued that electric transmission lines require a different and heavier type of construction from telephone lines thus creating a reasonable distinction. Common observation discloses that some electric transmission lines use taller and heavier poles than the telephone lines across the road. However, this is not always apparent. Frequently and along many roads only a close look can reveal which is the electric line and which is the telephone line. The various types of construction used by public utilities have nothing to do with the problem before us. In the case before us the type and character of construction is not the issue. Plaintiff claims a presumption of negligence not because of the construction but because the overhead wires carried electricity for sale rather than lower voltage electricity for transmitting communications. When electricity has nothing to do with an injury we think the statutory construction sought by plaintiff would create a clear and unconstitutional discrimination. — 252 — V. It is argued that the statute relates to procedure and not substantive rights. We do not agree that the problem is so limited. The creation of a statutory presumption of negligence and proximate cause even though rebuttable does more than change the method of procedure. It creates a prima facie case where one does not otherwise exist and places on a particular defendant a burden not required of others. Under plaintiffs claimed construction of the statute it would not even be necessary to show that the line was energized at the time to make a prima facie case. An allegation of the purpose or use and ownership would suffice. Proof in rebuttal that the transmission line at the time was carrying no energy would show that electricity was not involved and might factually rebut the statutory presumption but there is nothing in the statute that says so. In fact, not only negligence but proximate cause is presumed. The statute says “negligence will be presumed * * * in causing said injury # * Much more than mere procedure is involved. Obstacles amounting to discrimination are created. In Danner v. Hass, 257 Iowa 654, 667, 134 N.W.2d 534, 543, we discussed the power of the legislature to prescribe rules of evidence. We quoted with approval from 16A C. J. S., Constitutional Law, section 621, that rebuttable presumptions may be created or destroyed. We are in accord with the abundant authorities supporting this rule. The rule, however, does not go so far as to permit an obvious 'discrimination between persons or corporations based only on unrelated use or ownership of a utility. When a special situation is created or a special hazard exists special rules may be established but the rules must be appropriate and reasonable. To create a special rule of presumption of negligence and proximate cause incident to a guy wire belonging to one utility but not to the same kind of guy wire belonging to a different utility is a clear discrimination. Language in Western & Atlantic Railroad v. Henderson, 279 U. S. 639, 641, 49 S. Ct. 445, 446, 73 L. Ed. 884, 887, is significant. In that case a Georgia statute created a presumption of liability 'against a railroad company rebuttable by showing of — 253 — “all ordinary and reasonable care and diligence.” In a railroad grade crossing death case the court instructed: “ ‘When it has been made to appear that injury or damage has occurred by reason of the operation of the locomotive and train of ears of a railroad company, the presumption arises that the railroad company and its employees were negligent in each of the particulars specified in the plaintiff’s petition * * ” A verdict for plaintiff affirmed by the Supreme Court of Georgia was reversed by the United States Supreme Court. The court said: “A statute creating a presumption that is arbitrary, or that operates to deny a fair opportunity to repel it, violates the due process clause of the Fourteenth Amendment. Legislative fiat may not take the place of fact in the judicial determination of issues involving life, liberty, or property. Manley v. Georgia, [279 U. S. 1, 49 S. Ct. 215, 73 L. Ed. 575] and cases cited. “The mere fact of collision between a railway train and a vehicle at a highway grade crossing furnishes no basis for any inference as to whether the accident was caused by negligence of the railway company or of the traveler on the highway or of both or without fault of anyone. Reasoning does not lead from the occurrence back to its cause. * * The court concluded by holding the presumption raised by the statute “is unreasonable and arbitrary, and violates the due process clause of the Fourteenth Amendment.” Under this case two standards must be met. There must be an opportunity to rebut and additionally the presumption may not be arbitrary, i.e., it must have some reasonable relationship between the fact proved and the ultimate fact to be established. In the ease at bar the statutory presumption “may be rebutted by proof”, but it is arbitrary and there is no reasonable relationship between the fact that plaintiff was thrown from his horse after contact with a particular guy wire rather than one attached to some other pole. Numerous presumptions, inferences and liabilities have been created and approved where none previously existed, but they may not create a burden in one situation where none exists in a comparable situation. YI. Many of the authorities discussed in the briefs are res — 254 — ipsa loquitur cases. They need not be discussed here. This is not a res ipsa loquitur case. Plaintiff relies solely on the statute. The statute creates a presumption. The res ipsa inference arises when the occurrence in which the injury was sustained is shown to be of such a nature as would not ordinarily happen without negligence. Here there is neither claim of reliance on the res ipsa inference nor allegations for its support. VII. Appellant argues that “chapter 489 establishes a franchise privilege. In the exercise of its police powers every state has the right to regulate and control its public highways and grounds and this is usually done through the vehicle of a franchise from the legislature, or through a franchise which the legislature has authorized some other arm of government to issue. No one has a legal right to a franchise except as that right may be created by the legislature. It may be a blanket franchise, or a specific one for which an application must be made. It may be given or refused by the legislature, and if given, it may be upon such terms and conditions as the legislature may prescribe. It is a contract between the grantee and the state. * * * “In granting a franchise, the state can make such distinctions and discriminations as it may desire, and they are not subject to challenge.” The presumption in section 489.15 applies to electrical transmission lines whether over public property under franchise or over private property. Litchford v. Iowa-Illinois Gas and Electric Co-., supra. The statute does not relate to a franchise and the argument is not germane to our problem. VIII. Electricity is dangerous. The statutory presumption is justified if it is appropriately interpreted. A reasonable basis for distinction is lost when we attempt to draw a line between an electric utility pole and a telephone pole, a flagpole or a fence post. We conclude that section 489.15, if interpreted and applied as sought by plaintiff, would be violative of the constitution. We assume that the legislature intended a constitutional enactment. We proceed from that premise. “All presumptions are indulged in favor of constitutionality.” Danner v. Hass, supra, at page 661 of 257 Iowa. — 255 — IX. It is our duty if possible to construe the statute so as to preserve its constitutionality. In Kerr v. Chilton, 249 Iowa 1159, 1165, 91 N.W.2d 579, we quoted with approval from 82 C. J. S., Statutes, section 326, pages 623, 624, as follows: “ ‘A construction which will cause objectionable results should be avoided and the court will, if possible, place on the statute a construction which will not result in injustice, * * *.’ ” Questions of due process, constitutionality and statutory construction were involved. Supported by cited authority we held that a statute will be construed, if fairly possible, so as to avoid doubt as to its constitutionality. Loe. eit. 1166 of 249 Iowa. This statement is repeated in Jacobs v. Miller, 253 Iowa 213, 218, 111 N.W.2d 673. In Iowa Power & Light Co. v. Pleasant Hill, 253 Iowa 532, 536, 112 N.W.2d 304, we approved a statutory construction “that is not reduced to an absurdity, meaningful effect is given to its provisions * * Construed as it was by the trial court the constitutionality of section 489.15 is not challenged. So construed the statute is clear in its purpose and meaningful in its effect. X. Due to the way this ease arose, neither counsel elected to argue the point of failure to plead freedom from contributory negligence. The injury occurred before July 4, 1965, but the petition was filed after that date. The effect of passage of chapter 430, Acts of Sixty-first General Assembly, 1965, on cases showing this chronology has not yet been subjected to review by this court. The importance of the question is such that this court should not decide that issue without the advantage of briefs and arguments by both sides. Neither should either party be penalized by failure to argue a matter which was not necessary to or part of the trial court’s opinion. No issue relative to contributory negligence is before us and we make no pronouncement thereon. The case is — Affirmed. All Justices concur except Becker, J., who dissents.