Alabama Power Company v. King

190 So. 2d 674, 280 Ala. 119, 1966 Ala. LEXIS 873

• Court: Supreme Court of Alabama
• Decided: June 2, 1966
• Docket: 6 Div. 275, 275-A
• Status: Published

Opinions

HARWOOD,. Justice.

This appeal pertains to separate judgments in favor of two respective plaintiffs and against the three joint defendants, the cases having by agreement been tried together in the court below.

In the suit below Jessie King sought damages for the destruction of a house he owned in Blount County, Alabama. The defendants were the Alabama Power Company, and the drivers of two automobiles, James Cordell Harvey, and James C. Quinn. The jury trial resulted in a general verdict against the three defendants, damages being fixed at $8,000.

Frank Helton who occupied the house as a tenant, of Jessie King also filed a suit against the same three defendants seeking damages for the destruction of personal property which was lost in the burning of the house. A general verdict in favor of Helton and against the three defendants was likewise returned, Helton’s damages being fixed at $8,000.

The complaint in the Helton suit is in all material respects identical with the complaint in the King suit, other than averments that Helton was a tenant of King, and the damages sought were for the destruction of personal property.

The complaints in each suit were in one count, and in the King suit, as last amended, read as follows:

“Plaintiff claims of the defendants the sum of Eight Thousand and No/100 ($8,000.00) dollars, with interest thereon, as damages for that on, to-wit, August 9, 1962, while plaintiff was the owner of a certain dwelling house situated in Blount County, Alabama, located on Murphee Valley Road, at a point about one and one-fourth miles south of the intersection of said road with Altoona Road, public roads in said County and State, the defendant Alabama Power Company was engaged in the business ' of furnishing electric power, for domestic use, to resi- ' dents of. said County -and State who resided in the general community where plaintiff’s said dwelling house was located, including residents of said County and State who resided in the vicinity of the intersection of said public roads; that .•on, to-wit, said date plaintiff’s tenant Frank Helton, who together with members of his family resided in said dwelling house, was a customer of said defendant and was supplied electric current for •domestic use in said dwelling house by means of defendant’s system of overhead •electric wires and appliances suspended •or placed on poles set at intervals along •said Murphee Road, extending from ■said dwelling to said intersection of said roads, and from thence in other directions, that on, to-wit, said date defendant Alabama Power Company failed to maintain its said system of electric zvires and appliances through which it supplied electric current for use in said dwelling in ¡a reasonably safe condition, and as a proximate consequence thereof, an electric current of such high and dangerous voltage was caused to be conducted into plaintiff’s said dwelling house that said ■dwelling caught fire and was destroyed; that on, to-wit, said date the defendants James Cordell Harvey and James Quinn, while operating two separate motor vehi•cles at said intersection of said public roads caused said motor vehicles to collide and thereby one or more of said motor •vehicles zvas caused to run into one of the poles oh.zvhich defendant, Alabama Power Company’s' system of overhead electric zvires was strung, and thereby one or more of the zvires of said defendant’s system of overhead electric wires which ■was charged with a high and dangerous ■voltage of electric current zvas caused to come into contact with the wire or ■wires of said defendanfs system of electric zvires that furnished electric power to said dzvelling house and as a proximate •consequence thereof an electric current •of such high and dangerous voltage was conducted into- plaintiff’s said dwelling that it caught fire and was destroyed.

“And plaintiff further avers that his said dwelling house caught fire and was destroyed on said date and occasion as a proximate result of the combined and concurring negligence of the defendants James Cordell Harvey and James Quinn in and about the operation of said motor vehicles at said time and place and the negligence of the defendant Alabama Power Company in failing to keep its said system of wires and appliances in a reasonably safe condition.” (Emphasis added.)

The Alabama Power Company filed demurrers to each complaint, and grounds 2, 8, 9, 11, 24, and 26, were as follows:

“2. For that the facts averred do not constitute negligence as a matter of law.

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“8. For that it does not sufficiently appear how or in what manner this defendant was guilty of negligence.

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“9. For that the quo- modo of defend- • ant’s alleged negligence is set forth in said count and the facts therein averred are insufficient to constitute negligence as a matter of law.

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“11. For that said count shows no breach of duty or negligence on the part of the defendant or its agents, servants or employees.

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“24. For that the allegation that ‘defendant Alabama Power Company failed to maintain its said system of electric wires and appliances through which it supplied electric current for use in said dwelling in a reasonably safe condition’ is insufficient to charge this defendant with any wrongful conduct.

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“26. Said count fails to allege any breach of a duty owing by this defendant to the plaintiff at the time and place complained of.”

The Alabama Power Company’s assignment of error No. 1 is that the court erred in overruling its demurrer to the complaint as amended, and counsel for the Power Company have in brief argued jointly the grounds of demurrer above set forth.

In essence these grounds of demurrer are related and present the single question as to whether or not the complaint states a cause of action because of a failure to aver negligence on the part of the Power Company.

When assignments of error are so related as to' present a single question, it is proper to group them for argument in brief. Wells Co. v. Lane, 217 Ala. 10, 115 So. 77; Boohaker v. Trott, 274 Ala. 12, 145 So.2d 179.

It is to be noted that the complaint as amended sets forth:

“That on, to-wit, said date defendant Alabama Power Company failed to maintain its said system of electric wires and appliances .through which it supplied electric current for use in said dwelling in a reasonably safe condition.

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“The defendants, James Cordell Harvey and James Quinn, while operating two separate motor vehicles at said intersection of said public roads caused said motor vehicles to collide and thereby one or more of said motor vehicles was caused to run into one of the poles on which defendant, Alabama Power Company’s system of overhead electric wires were strung, and thereby one or more of the wires of said defendant’s system of overhead electric wires which was /charged with a high and dangerous voltage of electric current was caused to come into contact with the wire or wires of said defendant’s system of electric wires that furnished electric power to said dwelling house.

“And plaintiff further avers that his said dwelling house caught fire and was destroyed * * * as a proximate result of the combined and concurring negligence of the defendants James Cordell I-Iarvey and James Quinn in and about the operation of said motor vehicles at said time and place and the negligence of the defendant Alabama Power Company in failing to keep its said system of wires and appliances in a reasonably safe condition.”

An analysis of the complaint shows that it does not aver that the defendants negligently did or negligently failed to do anything, and the word “negligence” does not appear in the complaint except in the last paragraph which avers that the house was destroyed as a proximate result of the combined and concurring negligence of the two automobile drivers in the operation of their motor vehicles and the negligence of the defendant Alabama Power Company in failing to keep its system of wires and appliances in a reasonably safe condition.

This dependent averment in the last paragraph was insufficient to charge the defendants-appellants with actionable negligence. Capital Motor Lines v. Loring, 238 Ala. 260, 189 So. 897.

In Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443, the complaint, in parts material to this review, states:

<t * * * that on said date, within said ‘visiting hours,’ at about six o’clock in the afternoon, plaintiff was returning to her home after having just visited her said husband, in the room in said hospital which he was then and there occupying as a patient, and that as plaintiff was descending the stairs provided for the use of persons going to the second floor from the first floor, or descending from the second floor to the first floor of said hospital building, said stairway was not sufficiently lighted to render such use by persons reasonably safe at that hour, and that as a proximate consequence of the negligence of defendant in failing to have said stairway sufficiently lighted to render such use by persons reasonably safe, plaintiff was caused to fall on the landing of said stairway, and sustained the following described personal injuries, * * * ”

Demurrers to the complaint were overruled and on appeal it was argued that the complaint did not allege that the insufficient lighting of the steps was in consequence of negligence on the defendant’s part, and that the complaint did not allege negligence, but at most assumed negligence. In holding that this point was well taken, this court stated:

“Another rule of pleading, well established, is, ‘when a complaint for personal injuries specifies particular acts or omissions of the defendant as constituting the negligence upon which the action is founded, the complaint is insufficient on apt demurrer, unless such acts in themselves show or suggest negligence, and a general averment of negligence does not cure the defective specification.’ Birmingham Ry., L. & P. Co. v. Barrett, 179 Ala. 274, 279, 60 So. 262, 263.

“And if the alleged acts in themselves do not constitute negligence as a matter of law, but are merely sufficient to suggest and to support an inference of negligence, the complaint must characterize the acts as negligence, and it is not enough that negligence be merely assumed. Birmingham Railway, Light & Power Co. v. Weathers, 164 Ala. 23, 51 So. 303; Birmingham Railway, L. & Power Co. v. Parker, 156 Ala. 251, 47 So. 138; Birmingham Railway, Light & Power Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann.Cas.1916A, 543; Garing v. Boynton et al., 224 Ala. 22, 138 So. 279.”

Again, in the City of Birmingham v. Cox, 230 Ala. 99, 159 So. 818, the opinion sets forth that:

“The rules of our cases in this connection are stated in Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443 (headnotes 3 and 4), to be: (1) That a ‘complaint specifying particular acts as constituting negligence, as basis for personal injury action, is insufficient on apt demurrer, notwithstanding general averment of negligence, unless acts specified in themselves suggest negligence’; and (2) that ‘where acts alleged do not constitute negligence as matter of law, complaint must characterize acts as negligence; it being insufficient that negligence be assumed.’

“The negligence charged is that defendant allowed ‘the open ditch, sewer or drain, occupying a part of 32nd Avenue, to be and remain without barriers, guard rails or other devices along the edge or near said open ditch, sewer or drain, for such an unreasonable length of time as to raise presumption of knowledge’; and that it had theretofore been stated, in the preceding section, that he suffered damage as a proximate consequence of defendant’s negligence, carelessness or failure to provide proper guard rails or barriers at and near said open ditch, sewer or drain.’ It will be observed that the rest of this pleading is, as indicated in the recent decision of Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 112, 145 So. 443, that the specific facts averred fail to show the duty and lack of the discharge thereof by the city.”

To like effect are the pronouncements in Sloss-Sheffield Steel & Iron Co. v. Bibb, 164 Ala. 62, 51 So. 345; Birmingham Ore and Mining Co. v. Grover, 159 Ala. 276, 48 So. 682; Merrill v. Sheffield Co., 169 Ala. 242, 53 So. 219; Jones v. Munson SS Line, 17 Ala.App. 226, 84 So. 415; Capital Motor Lines v. Loring, 238 Ala. 260, 189 ; Thompson v. White, 274 Ala. 413, 149 So.2d 797.

Since an electric power company is not an insurer, it is not under an obligation to so safeguard its wires that by no possibility can injury result therefrom. Its duty is to exercize that degree of care commensurate with the danger involved. Alabama Power Co. v. Berry, 254 Ala. 228, 48 So.2d 231, and cases cited therein. Clearly, therefore, the averment in the complaint that the Alabama Power Company failed to maintain its electric wires in a reasonably safe condition does not allege an act constituting negligence as a matter of law. At most, such averment merely suggests and supports ah inference of negligence. In other words the averment that the Power Company failed to maintain its wires in a reasonably safe condition in no wise charges, other than by inference, that such condition resulted from negligence on the part of the Power Company. For instance, the wire may have broken because of interference therewith by a third party or agency rendering the wire unsafe. This being so, the failure of the complaint to characterize the act of the Power Company as negligence is fatal to the complaint, and - the mere averment in the last paragraph that the damages were the proximate result of said negligence is merely an assumption on the part of the pleader, and cannot be deemed to cure the failure to aver negligence. See authorities cited, supra.

As to the two automobile drivers, the complaint merely avers that the motor vehicles collided and thereafter one or more of said motor vehicles ran into one of the poles of the Alabama Power Company. Clearly, such averment does not allege negligence as a matter of law, nor does it even suggest negligence on the part of the drivers. Yet the complaint in the final paragraph avers that the house was burned as a proximate result of the combined and concurring negligence of all three of the defendants.

In support of their argument that the complaint was good against demurrer, counsel for appellee cite only Aircraft Sales and Service v. Bramlett, 254 Ala. 588, 42 So.2d 144. This case involved the destruction of an airplane bailed to the defendants. The complaint after setting forth the facts of the bailment, states that the defendants failed to exercise reasonable care and diligence in the keeping of said airplane and as a proximate consequence thereof the plaintiff’s airplane was; destroyed by fire.

In holding the complaint sufficient, it was pointed out that when goods are lost while in possession of a bailee negligence is prima facie imputed to the bailee. The complaint therefore imputed negligence as; a matter of law, whereas no such imputation arises in the present case.

We hold that the court erred in overruling the demurrer of appellant 'Alabama Power Company.

While demurrers were interposed to the complaint by each of the defendant automobile drivers, counsel for each of these appellants have directed their arguments-to the action of the court in denying their respective requested written charges affirmative in nature.

The asserted error in this regard, in general terms, is that the wrongs charged to-the automobile drivers individually and the-damage allegedly resulting are not sufficiently conjoined as to cause and effect as to support a cause of action.

By pleadings and proof the claims-against the Power Company and the other two appellants, the automobile drivers, are-so intertwined as to be inseparable.

At common law a joint judgment' was regarded as an entirety, and a reversal' of the judgment as to one defendant required a reversal as to all. Some of oui~ earlier cases reflect this rule. See Huckabee v. Nelson, 54 Ala. 12; Massey v. Oates, 143 Ala. 248, 39 So. 142; Lawrence v. Stone, 160 Ala. 382, 40 So. 376. This earlier rule of entirety has now been modified to the extent that where a judgment, though joint in form is several in effect, and the interests of the parties are several and independent, then such judgment is not necessarily considered as entire, and such joint judgment may be reversed as to one or more of the defendants and not as to the other. Young v. Woodward Iron Co., 216 Ala. 330, 113 So. 223, on rehearing.

This relaxation of the older rule has, however, never been applied where it might work an injustice to one party defendant if the judgment were to be affirmed as to him while reversed as to one or more of the joint defendants. In such case the power exists, in the ends of justice, to reverse the judgment in its entirety. City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276; Luquire Ins. Co. v. Parker, 241 Ala. 621, 4 So.2d 259; Zemczonek v. McElroy, 264 Ala. 258, 86 So.2d 824.

Being clear to the conclusion that the lower court erred in overruling the demurrer to the complaint as asserted by the Power Company, and that the judgment must be reversed as to this appellant, we are further clear to the conclusion that the ends of justice necessitate a reversal of the judgment in its entirety. This being so, we pretermit a consideration of the errors argued by the two individual appellants, the drivers of the two automobiles.

Reversed and remanded.

LIVINGSTON, C. J., and MERRILL and COLEMAN, JJ., concur.