Alabama Utilities Co. v. Champion

• Decision Date: 28 February 1935
• Docket Number: 4 Div. 763
• Citation: 160 So. 346,230 Ala. 263
• Parties: ALABAMA UTILITIES CO. v. CHAMPION.
• Court: Alabama Supreme Court

160 So. 346

230 Ala. 263

ALABAMA UTILITIES CO. v. CHAMPION.

4 Div. 763

Supreme Court of Alabama

February 28, 1935

Rehearing Denied April 11, 1935

Appeal from Circuit Court, Covington County; Emmet S. Thigpen Judge.

Action for damages for personal injury by W.W. Champion against the Alabama Utilities Company. From a judgment for plaintiff defendant appeals.

Reversed and remanded.

Rushton Crenshaw & Rushton, of Montgomery, for appellant.

Powell, Albritton & Albritton and E.O. Baldwin, all of Andalusia, for appellee.

FOSTER Justice.

This is an action at law for damages alleged to have been caused by the negligence of defendant's agents or servants in the line and scope of their employment, in that they negligently caused a certain mentioned wire to be heavily charged with electricity.

Both counts 1 and 3 show that plaintiff was at a place where he had a right to be; that is, not a trespasser on defendant's premises or property. When so, defendant owed to plaintiff the duty to exercise due care not to cause injury to him. An injury which is the proximate consequence of such failure is actionable.

The complaint in counts 1 and 3 shows therefore a duty by defendant not to injure plaintiff by the failure to use due care.

The proper interpretation of the counts 1 and 3, we think, is that the negligence consisted in the fact of causing the wire to be heavily charged with electricity, and not the manner in which it was done or maintained. They do not allege any other conduct as negligent, as for instance, the location or condition of the wire. The fact of charging the wire heavily with electricity may be, as alleged, negligent, or willful in fact, but it is not actionable for that reason unless defendant owed the plaintiff the duty not to do so. Stowers v. Dwight Mfg. Co., 202 Ala. 252, 80 So. 90; Tennessee C., I. & R.R. Co. v. Smith, 171 Ala. 251, 55 So. 170; Dwight Mfg. Co. v. Word, 200 Ala. 221, 75 So. 979; Sloss-Sheffield S. & I. Co. v. Bibb, 164 Ala. 62, 51 So. 345; 45 Corpus Juris 639, § 16. Or unless the duty was one which for some reason was available to plaintiff. 45 Corpus Juris 647, §§ 21, 22.

The court judicially knows that every uninsulated wire heavily charged with electricity is dangerous if one comes in contact with it. But an electric utility is under a legal duty to charge some of its wires heavily with electricity when properly insulated or located, and, when so, there is no duty owing a person not to do so. There can be no conflict of legal duty.

Defendant as such utility was under a legal duty either thus to charge the wire in question, or was under the legal duty to plaintiff not to do so. As a utility serving the public with electricity along its wires and all those properly connected to its system for that purpose, the mere act of so charging such wires is not on its face and taken alone a breach of duty to plaintiff, though plaintiff was where he had a right to be. There must be some other fact or circumstance which makes it so, otherwise no breach of duty is shown. So that though it is alleged to be negligent, such negligence does not show an actionable right in plaintiff. While negligence may be alleged in general terms, it is not sufficient unless there is shown a breach of duty. It is true that there was a duty not to cause injury by negligent conduct, but only so when it appears that his conduct was such that defendant owed to plaintiff the duty not to do it. Burnett v. Alabama Power Co., 199 Ala. 337, 338 (3), 74 So. 459.

And the complaint must aver facts which disclose such duty. Kilgore v. Birmingham Rwy. Lt. & Power Co., 200 Ala. 238, 75 So. 996. The complaint is not predicated upon the negligent manner of performing a duty or right, but negligence in that the act was done, without showing a duty not to do it.

The chief question which the court was dealing with in Birmingham Ry. Light & Power Co. v. Cockrum, 179 Ala. 372, 60 So. 304, was whether the complaint showed that plaintiff was so situated as that defendant owed him the duty of due care. It was held that since plaintiff was not upon defendant's property she was entitled to protection against injury due to the simple negligence of defendant. The court did not treat the sufficiency of the count as showing negligent conduct. Moreover, that case was dealing with a street railway company, not an electric utility engaged in furnishing electricity to the public. There was no presumption that the line charged with electricity was one which the railway company was due to thus charge in order to carry on its business; nor does it appear that any ground of demurrer challenged the sufficiency of the complaint in this respect.

But in count 1, it is alleged that plaintiff came in contact with a wire heavily charged with electricity distributed by defendant. The implication there is that the electricity so distributed was on a wire needed for that purpose.

Count 3 alleges that plaintiff came in contact with a wire which was connected with defendant's transmission line, which was heavily charged with electricity. Again the implication is that such...