190 So.2d 674 (Ala. 1966), 6 Div. 275, Alabama Power Co. v. King

CourtSupreme Court of Alabama
Writing for the CourtHARWOOD, Justice.
Citation190 So.2d 674,280 Ala. 119
Date02 June 1966
Docket Number6 Div. 275,6 Div. 275-A.
PartiesALABAMA POWER COMPANY, James Cordell Harvey and James Quinn v. Jessie KING and Frank Helton.

Page 674

190 So.2d 674 (Ala. 1966)

280 Ala. 119

ALABAMA POWER COMPANY, James Cordell Harvey and James Quinn

v.

Jessie KING and Frank Helton.

Nos. 6 Div. 275, 6 Div. 275-A.

Supreme Court of Alabama.

June 2, 1966

Rehearing Denied Oct. 6, 1966.

Page 675

[280 Ala. 120] Martin, Balch, Bingham, Hawthorne & Williams, Birmingham, for Alabama Power Co.

Rives, Peterson, Pettus & Conway, Birmingham, for appellant Harvey.

London, Yancey, Clark & Allen, Birmingham, for appellant Quinn.

Whitmire, Morton & Coleman, Birmingham, for appellees.

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 Jomes 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 residents of said County and State who resided[280 Ala. 121]

Page 676

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 wires 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 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 was 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 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 to not constitute negligence as a matter of law.

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

'9. For that the quo modo of defendant's alleged negligence is set forth in said count and the facts therein averred are insufficient to constitute negligence as a matter of law.

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

'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.

'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.'

[280 Ala. 122]

Page 677

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.

'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 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.'

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:

'* * * 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 [280 Ala. 123]

Page 678

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 full 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...

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