Alabama Power Co. v. Capps
| Decision Date | 29 January 1988 |
| Citation | 519 So.2d 1328 |
| Parties | ALABAMA POWER COMPANY v. Kay CAPPS, administratrix of the Estate of Richard D. Capps, deceased. 86-366. |
| Court | Alabama Supreme Court |
M. Roland Nachman, Jr., and Paul A. Brantley, Balch & Bingham, Montgomery, for appellant.
J. McGowin Williamson, of Williamson & Williamson and John A. Taber, Greenville, for appellee.
Kay Capps, as administratrix of the estate of Richard D. Capps, deceased, filed this action against Alabama Power Company, charging Alabama Power with the wrongful death of Richard Capps. Capps was electrocuted when he raised the bed of his dump truck into Alabama Power's electrical distribution lines. The trial court entered judgment on the jury's verdict awarding $500,000 to Mrs. Capps. Alabama Power argues that the trial court erred in denying its motion for new trial because the verdict was against the great weight and preponderance of the evidence; that the damages were excessive; that it is unconstitutional to impose punitive damages in wrongful death cases, such as this one, where the alleged wrongful conduct amounts only to negligence; and that the statutory 10% affirmance penalty is unconstitutional.
We find no merit to the argument that the verdict was against the great weight and preponderance of the evidence. The electrocution took place at a sand and gravel mining operation, and the essential theory of liability was that Alabama Power installed or maintained its distribution lines with too low a vertical clearance for this location, where large items of equipment, such as the dump truck in this case, routinely passed. The evidence created a jury question as to what was a safe height for the lines and as to what the actual height was. Alabama Power undisputedly knew that the large items of equipment were present in the vicinity of the lines. These lines were installed specifically to serve this mining operation. Indeed, a large piece of equipment had torn down the lines about 200 yards from the site of this particular occurrence less than two months earlier.
Alabama Power also argues that Capps was contributorily negligent, but we agree with the trial court that the evidence presented a jury question on this issue also, and that the evidence did not so conclusively show contributory negligence as to require that the verdict be set aside. Therefore, the trial judge did not err in denying Alabama Power's motion for new trial on the ground that the verdict was against the great weight and preponderance of the evidence. See generally, Alabama Power Co. v. Cantrell, 507 So.2d 1295 (Ala.1987), appeal docketed, 56 U.S.L.W. 3166 (U.S. Aug. 20, 1987) (No. 87-294); Alabama Power Co. v. Brooks, 479 So.2d 1169 (Ala.1985); Alabama Power Co. v. Alexander, 370 So.2d 252 (Ala.1979).
Nor do we find the award of $500,000 to be excessive. A verdict and judgment of $1,000,000 was upheld in Cantrell, supra, under a theory of liability very similar to that in the present case, and the facts in this case certainly show no less culpability than those in Cantrell. The trial court, citing Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), entered the following findings, among others, in denying Alabama Power's motion for remittitur or new trial:
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