Alabama Power Co. v. Emens, 8 Div. 505.
|153 So. 729,228 Ala. 466
|01 March 1934
|8 Div. 505.
|ALABAMA POWER CO. v. EMENS.
|Supreme Court of Alabama
Rehearing Denied April 12, 1934.
Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.
Action for damages by Annie Emens against the Alabama Power Company. From a judgment for plaintiff, defendant appeals.
Martin Thompson & McWhorter, of Birmingham, and Eyster & Eyster, of Decatur, for appellant.
Wert & Hutson and E. W. Godbey, all of Decatur, for appellee.
Action on the case against a public service corporation engaged in the business of generating and distributing electricity and selling and installing electrical equipment for domestic use by one of its patrons, for damages resulting from the destruction of the plaintiff's residence and its furnishings by fire alleged to have been communicated to said building as the proximate consequence of defendant's negligence.
The case was submitted to the jury on count 1 of the complaint, and the plea of the general issue. Said count, after averring the character of the business in which defendant was engaged, averred that some time during the year 1930, plaintiff purchased from defendant an electric stove which defendant undertook and engaged to "properly install" in plaintiff's residence, and did install said stove, together with necessary "electric switches, fuses, and wires," and agreed to maintain the same for a reward to be paid by plaintiff; that after such installation defendant maintained said stove, switches, fuses, and wires, and plaintiff paid such sums as were charged by it for said service; and further avers: (Brackets and italics supplied.)
Appellant insists that the plaintiff has embodied in said count 2 causes of action-ex contractu, for failing to properly install and maintain, and ex delicto, for furnishing current of electricity of a higher voltage than was reasonably safe for the purposes contemplated by its engagement.
In support of this contention some importance is attached to the averment of the count embraced in brackets, which we regard as nothing but an averment of the pleader's conclusion, neither adding to nor detracting from the averment of fact constituting the inducement out of which the duty springs as a matter of law, the breach of which is stated in the averments above italicized, and which constitutes the gravamen of the count.
It is well settled that on demurrer the averments of the pleading will be construed most strongly against the pleader and all intendments resolved against him. Montgomery Light & Water Power Co. v. Thombs, 204 Ala. 678, 87 So. 205; Walker v. Alabama, Tennessee & Northern Railway Co., 194 Ala. 360, 70 So. 125, 126; Southern Railway Co. v. Hanby, 183 Ala. 255, 62 So. 871; Western Ry. of Alabama v. Madison, 16 Ala. App. 588, 80 So. 162; Stewart v. Smith, 16 Ala. App. 461, 78 So. 724.
Nevertheless the character and sufficiency of the pleading must be determined by the averment of fact, and mere conclusions of the pleader as to the duty arising from the facts are treated as surplusage. Ragsdale v. Kinney, 119 Ala. 454, 24 So. 443; Indemnity Co. of America v. Bollas, 223 Ala. 239, 135 So. 174.
The count avers that the stove and equipment were installed and maintained, "but that defendant was guilty of negligence in and about the installing and maintenance of said stove, switches, fuses and wires," not a breach of the contract, but misfeasance in its performance proximately resulting in injury to plaintiff. 40 C.J. pp. 1222, 1223; Mobile Life Insurance Co. v. Randall, 74 Ala. 170; Southern Railway Co. v. Jones, 132 Ala. 437, 31 So. 501.
The contention of appellant is, therefore, without merit.
The evidence is without dispute that the defendant is engaged in the business of generating and distributing electricity, as a public service, and there was evidence going to show that it sells and installs electric stoves and other electrical equipment in the homes of its customers, and distributes to them electricity for domestic use. That it sold to plaintiff an electric stove and agreed for a consideration to install the same in plaintiff's residence, with suitable switch boxes, fuses, and cable leading to and supplying said stove with electricity for such uses as said stove was adapted to. That defendant first sold and delivered to plaintiff and installed a small stove, which was later exchanged for a larger stove.
The plaintiff adduced evidence tending to show that the cable leading from the switch box to the stove was brought in under the floor of the kitchen and brought through the floor behind the stove at a "right angle." That said cable referred to as a "BX" consisted of three No. 6 copper wires insulated and inclosed in a flexible steel cable.
There was expert testimony tending to show that the correct method of bringing the cable up through the floor is to make a curve first down from the floor and make another curve up through the floor; that turning abruptly up through the floor at a sharp angle tended to break the insulation on the wires inclosed in the steel cable, and if the insulation was injured this would cause the current to leak through the insulation, burn away the steel covering, and eventually cause a "short" in the electric current, which would blow the fuses and interrupt the service.
That another effect of such leakage through the broken insulation would be to generate heat at this point which would ignite inflammable material.
There was further evidence that plaintiff's residence which had been standing for a number of years was constructed of pine lumber and plastered on the inside over wooden laths; that a short time before the fire was discovered the plaintiff turned on the stove to heat some water for the doctors who were treating plaintiff's husband who was at the time ill; that when plaintiff turned on the stove there was nothing burning in the kitchen and no odor of burning material, but a short time thereafter, when she returned to the kitchen, the kitchen wall back of the stove was in flames from the top of the stove up, and had burned through so that, as one witness stated, he could see through and see the laths burning. Immediately upon the discovery of the fire the doctors attending plaintiff's sick husband hastened to get him out of the house, and one of them testified that just as they got him outside the lights in the house and in the town all went out. This resulted, as the evidence shows, from a short circuit blowing out the fuse in the transformer, where the current was "stepped down" from 6,900 to 230 volts, for domestic use. The flame spread, and in a short time the building with its contents was destroyed by the fire.
The plaintiff also offered evidence tending to exclude other sources or causes of fire, showing that the coal range in the kitchen had not had any fire in it for several hours; that the coal range was in the southwest corner of the kitchen, and the electric stove and the fire when first discovered were north of the coal range; that the electric stove was only a few inches from the wall of the kitchen where the fire apparently originated.
The cable leading to the stove was disconnected and removed after the fire by the defendant's agents and carried to the defendant's office for examination by its engineers, and was kept by defendant in its possession, and said cable or a portion thereof was brought into court during the trial and some of the witnesses testified in respect to its condition; and the testimony goes to show that a hole had been burned through the steel casing of the cable, and there was testimony tending to show that the hole was caused by a leakage of the current heating the cable to a melting point where the hole was discovered.
The evidence shows that the house was wired for lighting purposes and also for the stove. The light wires were designed to carry a voltage of from 110 to 120 volts, and the stove cable a voltage of from 220 to 250 volts. Expert testimony was offered going to show that the lighting system and the heating system of wires should be controlled by separate switch boxes, and the evidence was in conflict as to whether two or only one switch box was installed when the stove was placed in the building. There was also evidence going to show that excessive heat from electricity is not caused by excessive voltage, but by excessive amperage, and that a short in the system increases the amperage.
The electricians who installed the wiring in plaintiff's residence testified, in behalf of defendant,...
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