Alabama Power Co. v. Smith

• Decision Date: 22 March 1962
• Docket Number: 2 Div. 401
• Citation: 273 Ala. 509,142 So.2d 228
• Parties: ALABAMA POWER COMPANY v. Carrie S. SMITH et al. C. Pierson COSBY v. Carrie S. SMITH et al. John J. SMEDLEY v. Carrie S. SMITH et al. -403.
• Court: Alabama Supreme Court

Page 228

142 So.2d 228

273 Ala. 509

ALABAMA POWER COMPANY v. Carrie S. SMITH et al.

C. Pierson COSBY v. Carrie S. SMITH et al.

John J. SMEDLEY v. Carrie S. SMITH et al.

2 Div. 401-403.

Supreme Court of Alabama.

March 22, 1962.

Rehearing Denied June 21, 1962.

Bonner & Bonner, Camden, and Martin, Vogtle, Balch & Bingham, Alvin W. Vogtle, Jr., and Carey J. Chitwood, Birmingham, for appellant Alabama Power Co.

Harry W. Gamble and McLean Pitts, Selma, for appellant Cosby.

Pitts & Pitts and Cecil C. Jackson, Jr., Selma, for appellant Smedley.

Roy Kimbrough, Thomasville, and Godbold, Hobbs & Copeland, Montgomery, for appellees.

COLEMAN, Justice.

This is an appeal by defendants from a judgment for plaintiffs, rendered on a jury verdict, in an action for wrongful death.

Mitchell & Nall, Inc., hereinafter sometimes referred to as the contractor, was engaged in constructing an additional wing to a school building in Dallas County. The deceased, for whose death the action is brought, was Earl Smith. He was an employee of the contractor. The widow and minor children of Smith are the plaintiffs in the case. The contractor is not a party to this action.

The three defendants are the Alabama Power Company, a corporation, sometimes herein referred to as the Power Company or the company; C. Pierson Cosby; and John J. Smedley. The Power Company maintained high tension wires carrying a potential of 4160 to 2400 volts to provide electrical service to the school. The new wing of the school building lay under the wires. The wires were approximately fifteen feet above the roof of the new wing. The wires were not insulated. The wing was one-story high, about 13 1/2 feet above the ground.

The roof of the new wing was to be made of steel reinforced concrete. In order to lift fresh concrete from the ground to the roof, the contractor procured a crane which was used to lift a bucket of concrete from the ground and swing the bucket over the roof where the bucket was emptied and the concrete spread so as to form the roof.

The crane used for this purpose was the property of the defendant, Cosby. The crane operator was the defendant, Smedley. The contractor arranged with Cosby to use the crane and the operator. The operator, Smedley, was employed by Cosby. Whether Smedley continued to be the servant of Cosby so as to make Cosby liable for injury proximately resulting from Smedley's negligence is one of the questions in the case.

The deceased, Earl Smith, was an electric welder. He had been assigned the duty of giving signals to the crane operator and of helping to dump the concrete on the roof. Two other employees of the contractor were under Smith's supervision to assist him in dumping the concrete.

When first brought to the job, the crane was equipped with a 35-foot boom which was not long enough, so a 15-foot extension was added. The bucket, when loaded with concrete, weighed 2700 to 2900 pounds.

On the morning of the day in question, concrete was lifted to the roof and poured in one position. The crane was then moved to another position. At some time during the moving of the crane, the cable from which the bucket was suspended touched the high tension wire and made 'sparks fiy.' The crane was moved a 'little bit further away' from the wires.

Shortly after lunch, the pouring of concrete in the new position was resumed. Smith and his two helpers were unloading a bucket of concrete on the roof. Smedley testified as to Smith's actions at the time he was fatally injured as follows:

'A He give me a signal to move over a little closer.

'Q What did you do then?

'A I moved over. He taken one step back.

'Q Just tell us what took place after that?

'A He taken one step back, and looked up at the wires, and looked back down at his two men, and said something--I never did know--and he pulled the bucket and they pushed it, and it hit the wire, and, well, fire flew from the boom; and when it flew from the boom, I just reversed it right back from the wire, and hollered at the others there was three men down up there.'- The case was tried on a single count charging that the negligence of Cosby and Smedley in operating or maintaining the crane and the negligence of the Power Company in allowing or causing its electric wires to become or remain in an unsafe condition united or concurred in proximately causing the death of Smith. Each defendant pleaded the general issue and contributory negligence on the part of Smith, in short by consent. The defendants have severally assigned errors and have filed separate briefs.

Pleas in Abatement.

Defendants, Cosby and Smedley, each filed a separate plea in abatement which asserts that the venue was improperly laid in Wilcox County. The pleas allege that none of the defendants had a permanent residence in Wilcox County and that each of the defendants, respectively, was a permanent resident of another county. The complaint alleges that the act or omission which caused the death of Smith occurred in Dallas County.

The court sustained plaintiffs' demurrers to the pleas in abatement and those rulings of the court are assigned as error.

Cosby and Smedley argue that because none of the defendants had a permanent residence in Wilcox County and all the defendants had a permanent residence in a different county, the action could not be brought properly in Wilcox County under § 54, Title 7, which provides in pertinent part that: '* * * all other personal actions, if the defendant or one of the defendants has within the state a permanent residence, may be brought in the county of such residence, or in the ocunty in which the act or omission complained of may have been done or may have occurred. * * *' These defendants concede, however, that under § 60, Title 7, a corporation may be sued in any county in which it does business by agent, and that, if the Alabama Power Company were the only defendant, then the action would have been properly brought in Wilcox County. In support of this argument, the defendants rely on Eagle Iron Co. v. Baugh, 147 Ala. 613, 41 So. 663, where it was said concerning § 4207, Code 1896, the progenitor of § 60, Title 7:

'* * * Section 4207 applies to suits against corporations when they are sole defendants, and does not conflict with sections 4205 and 3271 in reference to suits against two or more defendants.' (147 Ala. at page 617, 41 So. at page 664)

The defendants further recognize that their contention is contrary to the holding in Louisville & Nashville R. Co. v. Strickland, 219 Ala. 581, 122 So. 693, but insist that the holding in the Strickland case is erroneous.

In the Strickland case, this court said that § 9418, Code 1923 ( § 185, Title 7, Code 1940), provides that any joint or joint and several action may be brought in a county having jurisdiction of any one of the defendants, and be executed in any county in the state. The court held that the pleas in abatement in that case were subject to the ground of demurrer which pointed out that the pleas did not allege that one of the corporate defendants was not doing business in the county where the action was brought, which, by coincidence, was also Wilcox County, when that action was commenced.

In the instant case, the pleas do not allege that the defendant, Alabama Power Company, a corporation, was not doing business in Wilcox County when this action was commenced. The demurrers pointed out this defect in the pleas. The rulings sustaining the demurrers are supported by the decisions of this court and are not in error. National Surety Company v. First National Bank of Opelika, 225 Ala. 108, 142 So. 414; Ex parte Kemp, 232 Ala. 434, 168 So. 147; Leath v. Smith, 240 Ala. 639, 200 So. 623; Ex parte Southern Bell Tel. & Tel. Company, 267 Ala. 139, 99 So.2d 118.

Demurrer to Complaint.

The Power Company has assigned as error the action of the court in overruling its demurrer to the complaint. As last amended the complaint contained a single count, E(1), which recites as follows:

'The plaintiff, Carrie S. Smith, who is the widow of Earl Smith, deceased, and William Earl Smith, Bobbie Jean Smith and Alice Sylvia Smith, minor children of the said Earl Smith, acting by their mother and next friend, Carrie S. Smith, sue as the dependents of Earl Smith, deceased, and claim $100,000.00 as damages of the defendants for that heretofore on to-wit, the 29th. day of October, 1956, the said Earl Smith, now deceased, was employed by Mitchell & Nall, Inc., a building contractor, on a construction job at R. B. Hudson High School located on, to-wit, First Avenue and Lapsley Street in the City of Selma, County of Dallas, Alabama.

'The plaintiffs further aver that on, to-wit, said date and day and at said time and place the defendants, C. Pierson Cosby and John J. Smedley, were engaged in the business of maintaining and operating a crane in delivering concrete to the roof of the wing of said school building which wing was under construction.

'The plaintiffs further aver that on, to-wit, said day and date and at said time and place the defendant Alabama Power Company was engaged in the business of distributing electric current and in connection with said business, maintained uninsulated wires or an uninsulated electric line or lines suspended in the air, charged with currents of electricity dangerous or deadly to the life or limb of human beings coming into contact or close proximity therewith, a short distance above and in close proximity to the place where the said Earl Smith, now deceased, was then working. The plaintiffs further aver that the said defendant Alabama Power Company then had knowledge or notice that said construction was being done in close proximity to its said electric power line or lines and that workmen employed in the construction of said building were working in close proximity to said electric power line or lines. The plaintiffs further aver that the defendants, C. Pierson Cosby and John J. Smedley, then had knowledge...