Alabama Power Co. v. Tatum

• Decision Date: 09 January 1975
• Citation: 306 So.2d 251,293 Ala. 500
• Parties: ALABAMA POWER COMPANY v. Jimmy Ray TATUM. ALABAMA POWER COMPANY v. Clarence TATUM. SC 632 and SC 946.
• Court: Alabama Supreme Court

Page 251

306 So.2d 251

293 Ala. 500

ALABAMA POWER COMPANY v. Jimmy Ray TATUM.

ALABAMA POWER COMPANY v. Clarence TATUM.

SC 632 and SC 946.

Supreme Court of Alabama.

Jan. 9, 1975.

Balch, Bingham, Baker, Hawthorne, Williams & Ward, Harold A. Bowron, Jr., and John P. Scott, Jr., Birmingham, for appellant.

C. Lee Reeves, Birmingham, for appellees.

JONES, Justice.

This is an appeal by the defendant, Alabama Power Company, from a judgment for the plaintiffs ($35,000 for personal injury to nine-year-old Jimmy Ray Tatum and $5,000 for the derivative action by his father, Clarence Tatum), who alleged that their injuries and damages proximately resulted from the negligence of defendant in maintaining its electrical power lines through a tree which the boy was climbing when he was electrically burned.

The Power Company claims that the trial Court erred in giving at Tatums' request the following instruction to the jury:

'I charge you, members of the jury, that an electric company maintaining a dangerous wire through or near a tree is bound to anticipate that persons may lawfully climb the tree, to exercise due care to prevent injury to such persons from its wire, and to keep such wires insulated in places where children climbing the tree will come into contact with the wire.'

The Power Company contends that the given charge was an erroneous extension of its legal duty in that the charge imposes upon it the absolute duty to anticipate that persons may lawfully climb the tree, thus making it an insurer. Rather, the Power Company asserts, 'the legal duty is to use reasonable care when it may be reasonably anticipated that persons may come in contact (with its electric lines). Also, there is no duth to insulate or isolate electric lines which are so placed that it cannot be reasonably anticipated that someone might come into contact with them.'

The Tatums counter with the contention that the giving of this instruction was without error for two reasons: First, because under the facts and circumstances of this case the absence of any reference to the law of reasonable anticipation was legally proper; second, even if such omission renders the charge misleading or incomplete, it was corrected or rendered harmless by other portions of the charge which include the reasonable anticipation rule.

We agree with appellees' second contention and hold that the trial Court did not err in giving this requested instruction. Since our holding is based on the conclusion that this charge was not an erroneous instruction in view of the entire charge given by the court, we will assume without deciding, in our further discussion of this point, that this charge, standing alone, constituted an abstract legal principle which was both incomplete and misleading for its failure to include the rule of reasonable anticipation.

Before proceeding with a statement of our reasons for so holding, a brief summary of the facts may be helpful:

Jimmy Ray Tatum suffered a serious electrical burn when he attempted to retrieve a ball from a hickory tree in the front yard of his parents' home. While climbing the tree, he came into contact with an uninsulated power line carrying 7200 volts.

Testimony showed that while this line had been inspected by the Power Company nine months before the accident, the tree had not been trimmed since 1966. (Their manual for operation and maintenance of these facilities showed that these wires were to be inspected annually.)

The testimony of Jimmy Ray's doctor showed that he suffered third degree burns on his left arm, right hand and thigh, all of which required extensive plastic surgery, and he had to have his right third finger amputated. In addition, he suffered a permanent functional disability in his right hand which would preclude his employment in certain jobs.

The sister-in-law of Clarence Tatum, who previously occupied the Tatum property, testified that she had previously informed the Power Company of wires running across her yard and through the trees. Specifically, she had reported the tree in question to a meter man at one time and had asked him about the limbs on the tree.

Clarence Tatum testified that on the day of the accident he could see where the wires had burned the back from different parts of the limbs near the top of the tree; that on the day before the accident his children and other children were playing in and around the tree, though at that time he did not know that the wires ran through the tree.

We reemphasize the point that our decision as to whether the foregoing facts would support the giving of the requested instruction here in issue, apart from the entire charge, is unnecessary. Admittedly, this charge standing alone is the equivalent of a directed verdict for the plaintiffs on the issue of the defendant's juty to anticipate that someone might climb the tree and its further duty to insulate the electric lines that passed through or near the tree. We agree with the Power Company that the fact that the legal principle contained in this charge is an excerpt from one or more of our judicial opinions ¹ does not of itself make such excerpt appropriate for instructions to juries. Mobile Infirmary v. Eberlein, 270 Ala. 360, 119 So.2d 8 (1960). See also Hatcher v. Camp, 279 Ala. 475, 187 So.2d 232 (1966); Britling Cafeteria Co. v. Irwin, 229 Ala. 687, 159 So. 228 (1935).

We further agree with the Power Company's insistence that the legal propositions stated in this charge are to be qualified by the nearness or remoteness of the tree with respect to human beings or perhaps other reasons that make it improbable that a person will climb the tree and that these circumstances are normally questions of fact for the jury. ² When the subject charge is reviewed as a single unit of instruction on the law of the case, however, we are clear to the conclusion that the case was not submitted to the jury absent the rule of reasonable anticipation; but, rather, a fair and reasonable interpretation of the charge as a whole left to the jury's determination the issue of whether the Power Company had discharged its legal duty to use reasonable care under the circumstances to reasonably anticipate that the minor plaintiff might be expected to climb the tree here involved.

The Alabama Rules of Civil Procedure became effective July 3, 1973, and this trial commenced July 10, 1973. Rule 51 (Instructions to Jury: Objection) not only changed substantially the Alabama practice but it differs in several particulars with, and in our opinion is an improvement of, its federal counterpart. It provides that requests to instruct the jury, with respect to such charges marked 'Given', shall be read without reference to which party filed the request; that such written instructions shall not go into the jury room; and, both as to 'given' and 'refused' charges, grounds for objection must be assigned before the jury retires, but out of the hearing of the jury.

As the Committee Comments to the Rules amply demonstrate, the development of the body of case law establishing the test for the giving or refusal of written requested charges was influenced, at least in part, by the practice then prevailing as to written requested charges. While the trial court nominally adopted the 'given' written requested charges as its own and instructed the jury to consider the same along with its oral charge, this theory was diminished in fact by the practice of singling out the party at whose request the charge was given, permitting the written charge to be taken into the jury room, and the placing of the trial court at the disadvantage of the automatic exception rule. Because of this practice, the tendency of which was to permit the jury to give undue emphasis to a 'given' written requested charge, the appellate test of its propriety, at least to some degree, treated such charge as an entity apart from the court's oral charge.

Whatever result might have here obtained under the old practice we need not decide. We look, instead, to the new practice prescribed under Rule 51, A.R.C.P., which treats the entire charge as a single entity. When testing the validity of any of its parts, including 'given' written requested charges, we must now look to the whole of the court's charge. See Lyons, Alabama Practice: Rules of Civil Procedure Annotated, Vol. 2, pp. 234--237.

The reality of having the jury instructed on the law of the case by the trial judge, with equal emphasis as to both the oral and any 'given' written requested charge, has been given operative effect by Rule 51. Stated otherwise, we will review alleged error in the giving of a written requested charge in the same context as if such charge were a part of the oral charge; and, as we have stated many times, where the objected to portion of an oral charge is misleading, abstract, or incomplete, we will adjudge error to reverse only if we conclude that prejudice resulted from the giving of such charge in light of the entire instruction. Wren v. Blackburn, 293 Ala. 393, 304 So.2d 187 (1974).

We observe initially that the trial Court, here, scrupulously followed the procedure outlined in Rule 51. He made no reference to which party requested the various 'given' instructions and withheld their physical possession from the jury. He, also, in furtherance of the spirit of this rule, incorporated these instructions in the appropriate part of the Court's full charge in a manner to preserve its symmetry--a practice which we commend and strongly encourage.

Because this is the first case to reach this Court directly involving Rule 51, ³ and because of its significance to the dispositive issue before us, we set out in some detail the structure and substance of the trial Court's charge. After addressing the jury on such preliminary matters as alignment and definition of the parties, and after stating the respective claims and defenses, the Court defined in more or less classical language the law of...