Alabama Power Co. v. Curry

• Decision Date: 08 March 1934
• Docket Number: 6 Div. 350.
• Citation: 228 Ala. 444,153 So. 634
• Parties: ALABAMA POWER CO. v. CURRY.
• Court: Alabama Supreme Court

153 So. 634

228 Ala. 444

ALABAMA POWER CO. v. CURRY.

6 Div. 350.

Supreme Court of Alabama

March 8, 1934

Rehearing Denied April 5, 1934.

Appeal from Circuit Court, Pickens County; Benj. F. Elmore, Judge.

Action for damages for personal injuries by W. W. Curry against the Alabama Power Company. From a judgment for plaintiff defendant appeals.

Affirmed conditionally.

In action against electric company failing to install ground wire at plaintiff's store, as result of which plaintiff was injured by lightning, question whether defendant had knowledge of danger held for jury.

Count A of the complaint is as follows:

"Plaintiff claims of the defendant the sum of One Hundred Thousand Dollars, as damages, for that on to wit, the 24th day of December, 1931 the defendant was engaged in the business of furnishing electric power to citizens of Carrollton Pickens County, Alabama for a reward and plaintiff was a customer of the defendant and was supplied electric current for lighting a store off of a system of overhead wires strung on poles set at intervals along the street and public roads in said City; that in said store of the plaintiff were certain wires and other electric appliances over and through which the said electric current furnished by the defendant to the plaintiff passed and that sockets were placed at the ends of said wires in the plaintiff's said store for attaching incandescent globes; that said appliances in said store, during thunder storms were exceedingly dangerous and were liable to cause death or bodily harm to persons at or near them, unless said appliances were properly safeguarded by what is known as a ground wire running from the entrance switch in said store into the ground; that on said date and for a long period of time prior thereto, towit, five years, the said appliances in said store were not and had not been properly safeguarded by a ground wire as aforesaid and that the defendant, its servants, agents or employees, while acting within the line and scope of their employment as such knew and for a long time had known that said appliances were not so safeguarded and that they were in a dangerous and defective condition; that on the day and date aforesaid the plaintiff was in his store, towit, at or about the front porch thereof and in close proximity to a socket suspended from the ceiling of said store by one of said wires, which socket was then connected with said wire and while the plaintiff was so standing he was struck by a bolt of lightning which came over defendant's wire from the outer air and which was hurled against and through his person, from, by or through said wires, and as a proximate consequence thereof the plaintiff suffered the injuries set forth in Count 3 of this Complaint.

"And plaintiff avers that all of his said injuries were proximately caused by the negligence of the defendant, its servants, agents or employees, in this: Defendant or its servants, agents or employees, with knowledge aforesaid, negligently maintained said current of electricity in said wires and appliances in the store of the plaintiff where said wires and appliances were not safeguarded by a ground wire as aforesaid and where said wires and appliances were in a dangerous and defective condition."

The following question was propounded by plaintiff to his witness Dyer: "If an electrician with ordinary skill regarded and exhibited by an electrician, who is installing wires in a building, if they go up there and see that switch in the day time, can they tell whether there is a ground wire?"

Defendant's objection to the question was overruled, and this ruling is made the basis of the seventh assignment of error.

Patton & Patton, of Carrollton, Harwood & McQueen, of Tuscaloosa, and Martin, Turner & McWhorter, of Birmingham, for appellant.

Taylor & Higgins and Chas. W. Greer, all of Birmingham, for appellee.

FOSTER Justice.

Appellee was the owner of a storehouse wired for electricity served by appellant, an electric distributor for the public.

The case was tried on count A, which alleges that the wiring system in plaintiff's house was defective, because there was no ground wire extending from the entrance switch into the ground, without which it was exceedingly dangerous during thunderstorms; that appellant, its servants, etc., knew of such defect and its dangers, and with such knowledge negligently maintained a current of electricity into said wiring appliances in plaintiff's store, and that a bolt of lightning came over defendant's wires from the outer air into the wiring system, and struck plaintiff, injuring him, as a proximate consequence of the negligence. We have not undertaken to copy the count, but to paraphrase it, in order to make clear the point of objection to it made by appellant.

There are four grounds of demurrer argued and insisted on for error in respect to the complaint: (1) It sets forth no cause of action. (2) It does not show that defendant's negligence was the proximate cause of plaintiff's injuries. (3) It contains two separate and distinct causes of action. (4) It is vague and uncertain as to the nature of the cause of action relied on.

We have not, therefore, considered any other feature of the demurrer. All that need be said in respect to the first is that it is general, and a general demurrer has been abolished by statute in suits at law. Section 9479, Code; U.S. H. & A. Ins. Co. v. Goin, 197 Ala. 584, 73 So. 117; Sanders v. Gernet, Bros. Lbr. Co., 221 Ala. 469, 129 So. 46.

The succeeding three assignments may be treated together, and involve a study of the nature of the action, and its essential qualities. It seems to us that the correct interpretation of the complaint is that it is predicated upon the theory that defendant negligently participated in the maintenance of a condition known by defendant to be dangerous, in that it was subject to be operated upon by some outside agency, though appellant's appliances were in no respect defective. That is the principle on which the case of So. Bell Tel. & Tel. Co. v. McTyer, 137 Ala. 601, 34 So. 1020, 97 Am. St. Rep. 62, is based.

It shows clearly that it is not intended to be founded on the principle that defendant was at fault or negligent in other respects, such as constituted the gist of the action in Alabama Power Co. v. Farr, 214 Ala. 530, 108 So. 373; Alabama Power Co. v. Bryant, 226 Ala. 251, 146 So. 602. It also shows clearly that it was not the electricity which defendant conducted along its wires into plaintiff's house which caused the injury, as in Alabama Power Co. v. Jones, 212 Ala. 206, 101 So. 898.

The distinction between the Jones and the McTyer Cases is clear. In the former, defendant was the active agent operating upon a condition known to be dangerous. In the McTyer Case, defendant created the dangerous condition, which was acted upon by some other operating agent. The causes of action are not the same. The points of difference may be analyzed as follows: If defendant is responsible for a condition, in itself harmless, but dangerous when another operative condition acts upon it, and which defendant knows, or should know, is likely to happen, and that, if it should happen, some such injury may occur as did result, defendant is held proximately responsible, and his negligence is in the failure to use due care that such condition shall not continue. See article by Prof. Beale in Harvard Law Rev. vol. 23, No. 5, subject "The Proximate Consequences of an Act." That is the McTyer Case. The Jones Case is where defendant produces the active agent that operates upon a dangerous condition, whether or not that condition is chargeable to defendant, but with knowledge of the danger consequent upon the application of such active agent to that condition.

The fact that the complaint alleges that defendant maintained a current of electricity into the...