Alabama Power Co. v. Talmadge

Decision Date27 October 1921
Docket Number2 Div. 738. [*]
Citation93 So. 548,207 Ala. 86
PartiesALABAMA POWER CO. ET AL. v. TALMADGE.
CourtAlabama Supreme Court

Rehearing Granted Nov. 10, 1921.

Rehearing Denied Dec. 22, 1921.

Appeal from Circuit Court, Dallas County; A. M. Pitts, Special Judge.

Banks S. Talmadge, suing as administrator, recovered judgment for the wrongful death of his intestate; and defendants the Alabama Power Company and the Selma Lighting Company appeal. Reversed and remanded conditionally.

In action against gas company for death caused by asphyxiation in which it was claimed that the company was negligent in causing gas with excessive pressure to be transmitted through instantaneous heater, the question of the company's negligence held for the jury.

The complaint avers the occupation by plaintiff and his intestate of certain described premises in the city of Selma; that said premises had installed therein "an appliance or apparatus known as an instantaneous water heater, which was installed by said defendant, Reeves Electric & Plumbing Company, for the purpose of heating water for bathing and other purposes in a bathroom by the use of gas, and plaintiff avers that said defendant, Reeves Electric & Plumbing Company, well knew the use to which said apparatus would be put and negligently furnished in the room of said building to be used by said plaintiff's intestate an instantaneous heater which was not provided with a vent and which was not properly adapted or adjusted to the flow of gas or kind of gas furnished for use in said building; that said defendant Alabama Power Company, under the name of Selma Lighting Company, or through its agent, Selma Lighting Company, was engaged in the business of furnishing gas to the public generally in the city of Selma on January 30, 1920, and for some months prior thereto, and was engaged in a public service, and prior to January 30, 1920, said last-named defendant undertook the duty of furnishing to the said Banks S. Talmadge and Pauline Talmadge and the members of their household for use in said instantaneous heater a flow of gas which was reasonably suited to be used in said heater and which was reasonably safe; that said defendants, Alabama Power Company and Selma Lighting Company, had knowledge that the said plaintiff's intestate and said Banks S. Talmadge were using said instantaneous heater and knew its condition with gas furnished by said Alabama Power Company and said Selma Lighting Company in the manner above averred. Plaintiff further avers on said 30th day of January, 1920, the said defendants, Alabama Power Company and Selma Lighting Company, so negligently conducted their business that, as a proximate result of said negligence, an unusual quantity or quality of gas, or gas of an unusually high pressure, was transmitted or allowed to flow through the pipes of said last-named defendants through said instantaneous heater so negligently furnished and provided by defendant Reeves Electric & Plumbing Company; that as a proximate result of said negligence of said three defendants poisonous gases were emitted in said apartment to such an extent that the said Pauline Talmadge was overcome and killed by said gases to the damage of the plaintiff," etc.

Defendants' motion to strike the complaint was upon the ground that "said complaint fails to state any cause of action."

Grounds of demurrer insisted upon and treated in the opinion are:

"(6) It appears from the complaint that it was the use of a defective heater by the plaintiff's intestate that caused her death, and not the flow or quality of gas."
"(14) For that it appears from the complaint that the alleged negligence of this defendant was not the proximate cause of the injury complained of.
"(15) For that it appears from the complaint that the alleged negligence of this defendant was not the efficient cause of the injury complained of."

Louie Bennish, a witness for the plaintiff, testified that he was mayor of the city of Selma on July 31, 1919, and until some time in October, 1920; that witness, accompanied by the city attorney on July 31 or August 1, 1919, went to Montgomery and met T. W. Martin, vice president of the Alabama Power Company, and one Mitchell, also an official of that company, for the purpose of making a contract with the Alabama Power Company for the lighting of the city. Witness further testified to the effect that he and his associate were given to understand by said official of the power company that the Alabama Power Company was "going to operate the plant" of the Selma Lighting Company; and that it was "our main purpose to get together on *** the contract." The witness further testified that it was his recollection that Martin and Mitchell told him they were going to operate the plant of the Selma Lighting Company; that "they" (Martin and Mitchell) "had a telegram that the deal had been closed, and it was our purpose to amend the preliminary contract that they had submitted to the city on which we got together later on."

The question made the subject of the thirty-seventh assignment of error, referred to in the opinion, was as follows:

"Now, Mr. Burns, supposing that a rapid heater, model C, had been installed in Selma on December 9, 1918, and on that day the pressure was not allowed to fall below three inches and not allowed to exceed five inches, and supposing further that that heater was properly installed and properly adjusted at that time to the flow and quality and pressure of gas then being furnished to it, would or not in your opinion that heater have been safe for use on that day?"

The question made the subject of assignment of error 75 was:

"I will ask whether in your opinion there is a danger to human life in the operation of a water heater in a bathroom that has little or no ventilation without the use of a vent pipe that will void out into the open?"

Section 1 of the Act of 1915 (page 610), under the authority of which the court reduced the judgment and conditionally reversed the same, reads as follows:

"That when an appeal is taken to the Supreme Court or Court of Appeals from the judgment of any court, and the Supreme Court or Court of Appeals shall be of the opinion that the case should be reversed because the judgment of the lower court is excessive and that there is no other ground of reversal, the Supreme Court, or the Court of Appeals, shall notify the appellee of the amount which it deems in excess of the just and proper amount of recovery, and require the appellee within a time to be stated in said notice to remit such amount upon penalty of a reversal of the case. If the appellee does not within the time stated in such notice, or within such further time as may be granted by the court for good reason, file a remittitur of such excessive amount the court shall reverse and remand the case; but if the appellee shall file with the court a remittitur of the amount deemed excessive by the court, the court shall reduce the amount of the judgment accordingly and shall affirm the case and enter a judgment for such reduced amount, which judgment so entered shall be and remain the judgment of the lower court and shall date back to the time of the rendition of the judgment in the lower court."

Hugh Mallory, of Selma, Perry W. Turner, of Birmingham, and J. J. Mayfield, of Montgomery, for appellants.

Ogden Persons, of Forsyth, Ga., and Pettus, Fuller & Lapsley, of Selma, for appellee.

SAYRE J.

Appellee, as administrator of Pauline Talmadge, deceased, brought this action under section 2486 of the Code to recover damages for the alleged wrongful act, omission, or negligence of appellants Alabama Power Company and Selma Lighting Company whereby the death of his intestate was caused. Reeves Electric & Plumbing Company was also joined as party defendant, but the jury returned a verdict in favor of that company. Judgment for plaintiff went against the other named defendants who prosecute this appeal. Errors are severally and separately assigned and argued.

It is argued that the court should have stricken the complaint. The motion to strike proceeded on the theory that the complaint as against these appellants, stated no cause of action since it showed on its face that what they did was not the proximate cause of the injury complained of. Otherwise stated, the argument is that, no relation being shown between appellants and the plumbing company, appellants are not alleged to have done more than furnish the condition upon which the unanticipated negligence of the plumbing company, which is alleged to have furnished a defective heater, operated to the hurt of plaintiff's intestate. This objection was proper to be taken by demurrer (Brooks v. Continental Ins. Co., 125 Ala. 615, 29 So. 13); but, since substantially the same question was raised by demurrer, we now state our conclusion. The complaint, as amended, consisting of a single count, does not allege community of purpose between these appellants and the plumbing company; does not allege joint negligence; but it does show that at the moment of the injury to plaintiff's intestate the several acts of commission and omission charged to the defendants converged to the production of that injury. All the original parties defendant are thus alleged to have been guilty of concurrent negligence, and were liable in a joint action though they had no common purpose and there was no concert of action. 1 Jaggard on Torts, pp. 212, 213. And in such case the parties defendant may be held responsible jointly or severally for the injury. Thompson v. L. & N. R. Co., 91 Ala. 501, 8 So. 406, 11 L. R. A. 146; Western Assurance Co. v. Hann, 201 Ala. 376, 78 So. 232; Home Tel. Co. v. Field, 150 Ala. 306, 43 So. 711; Western of Ala. v. Sistrunk, 85...

To continue reading

Request your trial
38 cases
  • J. H. Burton & Sons Co. v. May
    • United States
    • Alabama Supreme Court
    • 22 de janeiro de 1925
    ... 103 So. 46 212 Ala. 435 J.H. BURTON & SONS CO. v. MAY. 1 Div. 312 Supreme Court of Alabama January 22, 1925 ... Appeal ... from Circuit Court, Mobile County; Joel W. Goldsby, ... full significance of the words employed is the averment of a ... proximate cause. Alabama Power Co. v. Stogner, 208 ... Ala. 666, 95 So. 151. That is, the method of unloading the ... lumber ... skilled in that line of business?" Ala. Power Co. v ... Talmadge, 207 Ala. 86, 92, 93 So. 548; McCarthy v ... L. & N.R.R. Co., 102 Ala. 193, 14 So. 370, 48 ... ...
  • Stover v. Hill
    • United States
    • Alabama Supreme Court
    • 26 de outubro de 1922
    ...argument to present the ruling of the court on the motion for rehearing or reinstatement of the cause to the docket. Ala. Power Co. v. Talmadge, 207 Ala. 86, Ala. F. & I. Co. v. Williams, 207 99, 91 So. 879. The recurring question is, then, Is reversible error shown in dismissing the bill f......
  • Metropolitan Life Ins. Co. v. Estes
    • United States
    • Alabama Supreme Court
    • 17 de maio de 1934
    ... ... Clark, 75 ... [155 So. 84] Burgin v. Hodge, 207 Ala ... 315, 93 So. 27; Alabama Power Co. v. Cornelius, 211 ... Ala. 245, 100 So. 207. There is no question presented in this ... 451; Walker v. Stephens, 221 Ala ... 18, 127 So. 668; Alabama Power Co. v. Talmadge, 207 ... Ala. 86, 95, 93 So. 548. The general question is dealt with ... by text-writers. 1 ... ...
  • Parke v. Dennard
    • United States
    • Alabama Supreme Court
    • 18 de outubro de 1928
    ... ... duress of such disease of the brain he had so far lost the ... power to choose between right and wrong, and to avoid doing ... said act, as that his free agency was at ... October 30, 1926, committed to the Alabama Insane Hospital by ... order of the circuit court, where he remained until ... "discharged on ... v. Thombs, 204 Ala. 678, 87 So. 205; ... [118 So. 402.] Alabama Power Co. v. Talmadge, 207 Ala. 86, 93 So ... 548. As in the case of Mobile Electric Co. v. Fritz, supra, the ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT