Alabama Power Co. v. Conine

• Decision Date: 11 October 1923
• Docket Number: 5 Div. 856.
• Citation: 97 So. 791,210 Ala. 320
• Parties: ALABAMA POWER CO. v. CONINE ET AL.
• Court: Alabama Supreme Court

97 So. 791

210 Ala. 320

ALABAMA POWER CO. v. CONINE ET AL.

5 Div. 856.

Supreme Court of Alabama

October 11, 1923

Rehearing Denied Nov. 15, 1923.

Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.

Action by Alberta G. Conine, administratrix, and J. J. Langley administrator, of W. M. Conine, deceased, against the Alabama Power Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

N. D Denson & Sons, of Opelika, and Martin, Thompson & Turner, of Birmingham, for appellant.

James W. Strother, of Dadeville, and Barnes & Walker, of Opelika for appellees.

ANDERSON C.J.

This is the second appeal in this case. See 207 Ala. 435, 93 So. 22. The trial court submitted this case to the jury on the wanton as well as the simple negligence counts by refusing the general charge of the defendant as to each of the counts. The plaintiff relied upon the conduct of the defendant's superintendent or representative, Rodgers, as establishing his cause of action; therefore, in order to constitute wantonness, it was necessary for the plaintiff to show that said Rodgers was conscious of his conduct and conscious from his knowledge of existing conditions that injury would likely or probably result from his conduct, and with reckless indifference to consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injurious result. Birmingham L. & P. Co. v. Cockrum, 179 Ala. 373, 60 So. 304, and cases there cited. The proof not only fails to show that Rodgers was conscious of the fact that the wires suspended from the pole south of the burned building, or gap in said wires, was so heavily charged as to render the same dangerous to human life, but shows that he was under the impression that the same was not charged and was not in a dangerous condition. True, he was informed just before the fatal injury that said wires were heavily charged, but he immediately attempted to remove the danger when he and Conine met their death, but the entire record negatives rather than affirms that he was conscious of the dangerous condition of the wire prior to that time. We therefore hold that the trial court erred in refusing the defendant's requested general charge as to each of the wanton counts.

Since the defendant was entitled to the general affirmative charge as to the wanton counts, it is needless to discuss the rulings upon the demurrers thereto. We suggest, however, that while count 3 A was treated as a simple negligence one, we regard it as a charge of wantonness.

The trial court did not err in overruling the plaintiff's demurrer to pleas 2 and 4. Osborne v. Ala. Co., 135 Ala. 571, 33 So. 687.

There was sufficient evidence to afford an inference of negligence on the part of Rodgers in leaving the wires hanging on the south pole without using precautionary measures to see that they would not become charged, or without clipping them high up, as was done with those on the north side. In...