Brown v. Mobile Electric Co.

• Court: Supreme Court of Alabama
• Citation: 207 Ala. 61,91 So. 802
• Docket Number: 1 Div. 214.
• Parties: BROWN v. MOBILE ELECTRIC CO.
• Decision Date: 22 December 1921

91 So. 802

207 Ala. 61

BROWN
v.
MOBILE ELECTRIC CO.

1 Div. 214.

Supreme Court of Alabama

December 22, 1921

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action by Harvey W. Brown, as administrator of the estate of Luther H. Good, against the Mobile Electric Company, for damages for the death of his intestate. Judgment for the plaintiff, and the defendant appeals. Reversed and remanded. [91 So. 803]

Harry T. Smith & Caffey, of Mobile, for appellant.

Palmer Pillans, A. T. Gresham, and M. V. Hanaw, all of Mobile, for appellee.

MILLER, J.

Harvey W. Brown, as administrator of the estate of Luther H. Good, deceased, brings this suit for damages against the Mobile Electric Company, a corporation. He alleges, in substance, that his intestate's death was wrongfully caused by the defendant; that defendant was furnishing electricity to run a moving picture machine, under contract with intestate and others, and defendant, its agents or servants, while acting in the line and scope of their employment, unnecessarily and negligently charged a wire with which plaintiff's intestate was likely to come in contact, while operating the machine, with a deadly current of electricity; that his intestate came in contact with said wire so charged, and as a proximate result thereof was killed; and that it was not necessary under the contract for defendant to furnish a current of electricity to operate the lights and to run the machine that was dangerous to human life. There was a jury and verdict for defendant, judgment thereon by the court, and from it plaintiff appeals.

There are ten assignments of error based on rulings of the court adverse to appellant on demurrers to the complaint and to the different counts. In brief appellant argues only one. This one will be considered. The court will presume the others are waived. Atlantic Coast Line R. Co. v. Dothan Mule Co., 161 Ala. 341, 49 So. 882; 1 Ency. Dig. of Ala. Repts. p. 633, § 1078.

Count 4 as last amended, after making some other necessary allegations, averred:

"Defendant promised and agreed to furnish a current of electricity such as was reasonably necessary for said purpose, *** and the defendant *** did negligently furnish a greater current than was reasonably necessary for supplying said lights and operating said moving picture machine, *** and plaintiff's intestate, while engaged in and about his said business in said building, did come in contact with said wires or with said machine charged with said excessive current, and that he thereby received a shock of electricity which proximately caused his death," etc

This count as last amended is defective in failing to aver that the necessary and reasonably necessary current of electricity contracted for to run the lights and machine was not dangerous to human life, a deadly current. The contract may have called for a current that was dangerous to human life, a deadly current, to run the lights and machine; if it did, then it would be no breach of duty for the defendant to furnish it; and it would not be liable if the death of plaintiff's intestate was caused as a proximate consequence of coming in contact with it; and plaintiff could not complain even if the current furnished was greater than was reasonably necessary, for both currents would [91 So. 804] be dangerous to human life, a deadly current-the"the current contracted for by his intestate and the current furnished by the defendant. This amended count alleges no duty the negligent breach of which was the proximate cause of the death of Luther H. Good. This is necessary. The court did not err in sustaining the demurrers to it. Tenn. Coal & Iron Co. v. Smith, 171 Ala. 251, 55 So. 170.

A. D. Quackenbush is general superintendent of the defendant company. He has held that position since 1913, and has been engaged in the practical application of the profession since he graduated in 1907 at Armour Institute of Technology. He was an electrical engineer in charge of the business of defendant as general superintendent when Luther Good died at the Liberty Theater. He was not in the city the night of Good's death. The court erred in permitting defendant to ask him [Quackenbush] this question:

"I wish you would state how many ways there would be possible for a high tension current to get upon and into the wires and moving picture machine in the operating room of the Liberty Theater under the conditions that existed on the evening of May 25, 1919?"

The conditions existing at the Liberty Theater on the evening of May 25, 1919, are not stated by the witness, nor are they hypothesized in the question. If the conditions were known personally to him, he should have first detailed the facts to the court and jury, and thus given a basis to them for weighing the value of his opinion. If he did not know the conditions personally, then the conditions as shown by the evidence in the case, by other witnesses, should have been hypothesized to him as a basis on which to rest his opinion as an expert. If his opinion is based on known facts, then he must first testify to the facts before expressing his expert opinion on them. Stewart v. S.-S.-S. & I. Co., 170 Ala. 544, 54 So. 48, Ann. Cas. 1912D, 815; 11 R. C. L. p. 577, § 9; Raub v. Carpenter, 187 U.S. 159, 23 S.Ct. 72, 47 L.Ed. 119. An expert witness must be qualified and competent to testify.

"The qualifications of a witness to testify as an expert is a matter largely within the discretion of the court trying the case, and the appellate court will not reverse its rulings unless there has been an abuse of that discretion." Stewart v. S.-S.-S. & I. Co., 170 Ala. 544, 54 So. 48, Ann. Cas. 1912D, 815; L. & N. R. R Co. v. Elliott, 166 Ala. 419, 52 So. 28.

The hypothesized question addressed to the expert must include facts supported by the evidence or which the evidence tends to prove; but technical accuracy is not required. Each party has the right to submit to the expert for an opinion that part of the evidence which, if believed by the jury, would support his theory of the case. Hence the form of the question, when based on evidence or the tendency of the evidence in the case rests largely in the sound discretion of the trial court, and the court will not be put in error unless that discretion is abused. Birmingham Ry. & Elec. Co. v. Butler, 135 Ala. 388, 33 So. 33; Long Dist. T. &...