Alabama Power Co. v. Conine

• Decision Date: 19 January 1922
• Docket Number: 5 Div. 809.
• Citation: 93 So. 22,207 Ala. 435
• Parties: ALABAMA POWER CO. v. CONINE ET AL.
• Court: Alabama Supreme Court

93 So. 22

207 Ala. 435

ALABAMA POWER CO. v. CONINE ET AL.

5 Div. 809.

Supreme Court of Alabama

January 19, 1922

Rehearing Denied May 4, 1922.

Appeal from Circuit Court, Tallapoosa County; Lum Duke, Judge.

Action by Alberta G. Conine and another, as the personal representatives of the estate of W. M. Conine, deceased against the Alabama Power Company, for the death of their decedent. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

N. D Denson & Sons, of Opelika, J. Percy Oliver, of Dadeville, and Perry W. Turner, of Birmingham, for appellant.

James W. Strother and Thomas L. Bulger, both of Dadeville, for appellees.

MILLER J.

This suit is under the homicide statute. Section 2486, Code 1907. It is by the administrator and administratrix of the estate of W. M. Conine, deceased, against the Alabama Power Company. There was judgment for the plaintiff, and the defendant appeals.

Appellant was operating an electric light distributing system in the town of Camp Hill at the time of the injury causing the death of W. M. Conine. The wires were strung on poles in the streets of the town. About 2 o'clock in the morning a fire occurred in a pressing room building in the town. The fire from the building burned in two the wires of appellant strung on the poles in the street. The ends of the wires then fell on the ground. One E. H. Rodgers was local manager of defendant at that place. He severed some of the wires that were on the ground while the building was burning, so they would hang from the poles out of reach of persons passing. There was one or more wires left down on the ground. This agent of defendant assured some witnesses there was no further danger from the wires remaining on the ground. Conditions remained unchanged as to the wires until about 7 o'clock in the morning, when a wire on the ground was discovered to be charged with electricity. Plaintiff's intestate was informed of it, and he immediately notified Rodgers, defendant's agent, and together they immediately went to the wire. Rodgers assured Conine there was no danger in the wire. Rodgers picked up one of the wires and quivered. Conine grabbed a piece of paper and caught hold of the wire. Some of the witnesses testified that Conine fell first and died, and that then Rodgers fell, and afterwards died; others testified that Rodgers fell first, holding the wire, then Conine caught it, fell, and died. This was the tendency of some of the evidence. There are eight counts in the complaint. Demurrers were assigned to each. The court overruled the demurrers to each court.

Counts 1, 2, 3, and 4 charge simple negligence. Counts 1 and 2 each aver defendant, by its servants, agents, or employés negligently committed the act complained of, which caused the death of plaintiff's intestate. When it is so alleged, it is not necessary to aver the act was omitted or committed by the servant, agent, or employé while acting in the line and scope of his employment. When the defendant does the negligent act by its servant, this includes done in the line and scope of the servant's employment. Such averment is quite different from an allegation that it was done by defendant, its agent, or servant. He may have been defendant's servant, but not acting for and in the line and scope of his employment, at the time of the injury. Demurrers assigned to counts 1 and 2 were properly overruled.

Count 3 avers the act complained of was negligently permitted by defendant, its agents, servants, or employés, but fails to aver the agents, servants, or employés were at the time acting in the line and scope of their employment. This was necessary under these averments. Addington v. Am. Cast. Co., 186 Ala. 92, 64 So. 614. The court erred in overruling the demurrers to this count, numbered 3.

Count 4 avers "the defendant by its servants, agent or employés negligently permitted," etc., and it also alleges that Conine's death was proximately caused by reason of negligence of J. M. Barry, "who was in the service or employment of defendant, and while acting within the scope of his employment, or of his duties under his employment," etc. The count must be construed as a whole, and when it is, it will not be subject to that demurrer. This count, No. 4, under the evidence, was submitted to the jury. It charges that J. M. Barry was agent of defendant, that plaintiff's intestate's death was caused by his negligence, and that he was acting in the line and scope of his employment or duties under his employment at the time of the injury. These allegations were material. The burden of proving them is on the plaintiffs (T. C. I. & R. Co. v. Hamilton, 100 Ala. 252, 14 So. 167, 46 Am. St. Rep. 48); the general issue having been pleaded by the defendant. The proof fails to show that J. M. Barry was in any way connected with the defendant. No evidence indicates that he was an agent, servant, or employé of the defendant. The entire evidence points to and names E. H. Rodgers as the agent of defendant, keeping up its wires, managing its business at that place, at the time of the injury.

The defendant asked the court to give in its favor the general affirmative charge as to count No. 4. The charge was in writing. It was refused by the court. This was error. The evidence did not prove, or tend to prove, all of the material averments of this count; hence that charge should have been given. Hatch v. Varner, 150 Ala. 440, 43 So. 481; Tobler v. Pioneer Min. & Mfg. Co., 166 Ala. 482, 52...