Birmingham Water Works Co. v. Barksdale

• Decision Date: 12 October 1933
• Docket Number: 6 Div. 395.
• Citation: 227 Ala. 354,150 So. 139
• Parties: BIRMINGHAM WATER WORKS CO. v. BARKSDALE.
• Court: Alabama Supreme Court

150 So. 139

227 Ala. 354

BIRMINGHAM WATER WORKS CO. v. BARKSDALE.

6 Div. 395.

Supreme Court of Alabama

October 12, 1933

Appeal from Circuit Court, Jefferson County, Bessemer Division Gardner Goodwyn, Judge.

Action for damages for wrongfully cutting off water supply by Coleman Barksdale against the Birmingham Water Works Company. From a judgment for plaintiff, defendant appeals.

Transferred from Court of Appeals.

Affirmed.

Benners Burr, McKamy & Forman, of Birmingham, and Ross, Bumgardner Ross & Ross, of Bessemer, for appellant.

G. P Benton, of Fairfield, for appellee.

KNIGHT Justice.

The first insistence for error on the part of appellant is that the court improperly allowed the plaintiff a struck jury in the cause, after the plaintiff had announced that he was satisfied with the jury which had been placed in the box for the trial of the cause, and after the defendant had peremptorily challenged two of said panel.

In order that what took place in the selection of the jury to try this case may fully appear, we quote from the bill of exceptions on this point: "After both plaintiff and defendant had announced ready for trial, and the jury was placed in the box." "Whereupon the plaintiff's attorney stated that he was satisfied with the jury in the box."

"Mr. Ross: Well, we do not demand a struck jury, your honor, but we reserve the right to a legal challenge as authorized under the law.

"The Court: If the plaintiff wishes a struck jury I will give him a struck jury. I wouldn't consider that a waiver of a struck jury.

"Whereupon to this action of the court the defendant there and then, in open court, duly reserved an exception.

"Mr. Ross: All right, Mr. Benton, the defendant does not demand a struck jury; but we strike numbers 28 and 30.

"The Court: Well I will see what the plaintiff wants to do, whether he wants a struck jury or not.

"Mr. Benton: Well, if the court please, I would like to know whether you are going to let him strike 28 and 30, or not.

"The Court: Neither side demands a struck jury; then each side has the right, I believe, to three peremptory challenges.

"Mr. Ross: No, sir. Your honor takes the position that he doesn't waive his right. He was satisfied with the jury in the box.

"The Court: I am asking both sides first, whether or not they are satisfied with the jury in the box.

"Mr. Benton: I said I am.

"The Court: If both sides are satisfied with the jury in the box, that settles the question.

"Mr. Ross: No, sir. We are not satisfied.

"The Court: All right then. Do you want a struck jury, Mr. Benton?

"Mr. Benton: Yes, sir.

"The Court: All right.

"Whereupon the defendant then and there, in open court, reserved an exception to the court's said action and ruling.

"Mr. Benton: I would like to have the jury identified."

The jury was identified, and the defendant duly reserved an exception.

In the above rulings of the court we hold there was no error. The matter was within the discretion of the court, and we cannot affirm that it abused its said discretion, or that the court was unduly active in behalf of either side.

In support of its contention that the demand of the plaintiff for a struck jury came too late, after he had openly announced satisfaction with the jury as then in the box, we are referred to section 8661 of the Code, and to the cases of McArthur v. Carrie, 32 Ala. 75, 70 Am. Dec. 529, and Goodson v. Brothers, 111 Ala. 594, 20 So. 443.

In the McArthur v. Carrie Case, supra, it appears that, after the parties had announced ready for trial, the court directed them to submit their cause to jury No. 2, and called upon the plaintiff to accept or reject said jury. The plaintiff thereupon objected to one of the said jurors, and accepted the others; and the defendant, being then called upon to pass on the jury, replied by demanding a struck jury, which the court refused to grant, and the defendant duly reserved an exception to this ruling of the court.

This court, in that case, in passing upon the defendant's said exception, held that section 2264 did not require the court to be active in assigning a struck jury; that it is only when one of the parties makes the necessary demand that the court is called upon to make the order granting a struck jury; that immediately after the parties have announced themselves ready for trial, and before any steps have been taken therein, the party desiring a struck jury must make the demand therefor, and if he delays until the organization of the jury has been entered upon, the court is not bound to grant his request. The opinion in the case, on this point, concluded with this observation: " Whether it would be error, if the court should make such order after the proper time for making the demand had been permitted to elapse, we need not now inquire." (Italics supplied.) To the same effect is the holding of this court in the case of Goodson et al. v. Brothers, 111 Ala. 589, 20 So. 443.

We hold that it was within the sound discretion of the court to allow the plaintiff a struck jury in this case, and that in the exercise of this discretion, under the facts appearing in the bill of exceptions, the court committed no reversible error.

It is next insisted that the court committed error to a reversal in overruling the defendant's (appellant's) demurrer to the complaint. The particular defect in the complaint, pointed out by the demurrer, was the failure of the complaint to aver that he had complied with all the conditions entitling him to water service from the company,

There is no averment in the complaint negativing the fact the plaintiff was indebted to the water company for water in excess of the amount that the regular charge of $2.75 entitled him to under the contract of service. But it does appear that the plaintiff was not in arrears, at the time the company discontinued its service to him, in the payment of the regular quarterly charge. It is made to appear that for the quarter commencing May 12, 1932, the plaintiff had tendered to the defendant $2.75, which was the amount due the defendant for water for the quarter commencing May 12, 1932. The defendant cut off water from plaintiff's residence on July 18, 1932, which was within the quarter plaintiff had tendered payment for.

In the well-considered case of Alabama Water Co. v. Knowles, 220 Ala. 61, 124 So. 96, 101, the court, in an opinion by Mr. Justice Bouldin, held that, in an action against a public service company for failure to serve an applicant entitled to service, it is necessary to allege: "'(1) That the defendant was engaged in the discharge of a public service; (2) that the plaintiff came within the class of people whom the defendant was bound to serve; (3) that the plaintiff had performed all reasonable conditions precedent entitling him to that service; (4) that the defendant wrongfully refused to furnish the services; and (5) that the plaintiff had thereby been damaged.' Birmingham Ry., Light & Power Co. v. Littleton, 201 Ala. 147, 77 So. 565, 571; Arnold v. Alabama Power Co., 206 Ala. 506, 507, 90 So. 909; Spencer v. Bessemer Water Works, 144 Ala. 587, 39 So. 91."

The complaint, as drawn, complies with each of the above requirements, unless it be that it failed to negative the fact that plaintiff was indebted to the defendant by reason of excess water used during previous quarters; in other words, was not in default as to any...