Carter v. City of Gadsden

• Decision Date: 18 August 1955
• Docket Number: 7 Div. 234
• Citation: 264 Ala. 544,88 So.2d 689
• Parties: Homer CARTER v. CITY OF GADSDEN et al.
• Court: Alabama Supreme Court

Page 689

88 So.2d 689

264 Ala. 544

Homer CARTER v. CITY OF GADSDEN et al.

7 Div. 234.

Supreme Court of Alabama.

Aug. 18, 1955.

Rehearing Denied June 30, 1956.

Roy D. McCord and Rowan S. Bone, Gadsden, for appellant.

Hawkins & Rhea, Gadsden, for appellees.

LAWSON, Justice.

This suit was brought in the circuit court of Etowah County by Homer Carter against the City of Gadsden, a municipal corporation; Roy Wallace, individually and as Mayor of the City of Gadsden; Carl Temple, individually and as Electrical Inspector of the City of Gadsden; and E. L. Mount, individually, and as City Fire Marshal of the City of Gadsden.

Demurrer was sustained to the original complaint which consisted only of Count One. The complaint was amended by adding Counts A, A-1 and B-1, but demurrer was sustained to the complaint as thus amended. Thereafter the complaint was amended by adding Count C and by withdrawing all other allegations of the complaint as amended.

Count C reads as follows:

'Plaintiff claims of the Defendants, separately and severally, the sum of One Hundred Thousand Dollars ($100,000.00) as damages, for that heretofore, to-wit, on the 19th day of August, 1952, Plaintiff was the owner of and the operator of a large dry cleaning plant and the building in which the same was being operated at number 817 East Broad Street, in the City of Gadsden, Etowah County, Alabama, and the Plaintiff avers that at said time he had paid the city of Gadsden all legally required taxes, fees and licenses to operate said dry cleaning plant, and Plaintiff avers that at said time his said dry cleaning plant, and all of the equipment, appliances and appurtenances thereto fully and completely conformed to and with all of the legal requirements of the said City of Gadsden, and Plaintiff avers that as a matter of law, and as a matter of right, he had the right to operate said dry cleaning plant at said time and place, and Plaintiff avers that all electrical installations in said place dry cleaning Plant and building were safe and did not constitute a fire hazard and were not otherwise dangerous to human life, and did not in its relation to its existing use constitute a hazard to safety by reason of inadequate maintenance, dilapidation, obsolescence or abandonment, and all of such electrical installations were legal, and Plaintiff avers that on said date the Defendant, Roy Wallace, while acting individually and while acting as Mayor of the City of Gadsden, and while acting as an agent or servant of the City of Gadsden, a municipal corporation, and while acting within the line and scope of his duties of service as such agent to the City of Gadsden, and the said Carl Temple, while acting individually and while acting as the electrical official of the City of Gadsden, and while acting within the line and scope of his duties of service to the City of Gadsden, and the said E. L. Mount, while acting as an electrical official of the City of Gadsden, and while acting individually and while acting as an agent or servant of the City of Gadsden, and while acting within the line and scope of his duties of service to the City of Gadsden; did maliciously, illegally and wrongfully order and direct the Alabama Power Company, a Corporation, who were exclusively furnishing the electricity for the Plaintiff's said building and place of business, to disconnect said electricity from said place of business and no longer furnish electricity therefor. Plaintiff avers that said Defendants, Roy Wallace, Carl Temple and E. L. Mount, while acting as aforesaid, and while acting as the legal electrical officials of the City of Gadsden, maliciously, wrongfully and illegally caused said electricity to be so cut off or be disconnected from said building and the said plant of said Plaintiff under the authority given to them under Chapter One, Section 103 of the Building Code of the City of Gadsden, which said building code was passed, approved, adopted and published by the City of Gadsden on the 1st day of March, 1949, and was in full force and effect on the said 19th day of August, 1952. And the Plaintiff avers that as a proximate consequence of the said malicious, illegal and wrongful act or acts of the Defendants, while acting as aforesaid, at said time and place, the Plaintiff lost the use of his dry cleaning plant and building, and lost a large amount of time from his employment, lost the rent on his said building, lost all of the good will and trade of his said business, and Plaintiff was greatly vexed, humiliated, embarrassed and made sick and sore, and Plaintiff avers that he was so injured and damaged as the proximate consequence of said malicious, illegal and wrongful act or acts of the said Defendants, while acting as aforesaid, at said time and place, and to Plaintiff's full damage.'

Demurrers interposed to Count C by the City of Gadsden, Roy Wallace, Carl Temple and E. L. Mount in their official capacities were sustained. Demurrers of Wallace, Temple and Mount interposed to that count in their individual capacities were overruled. Thereafter there was an agreement to plead in short by consent.

The cause came on for trial before the court and a jury. The plaintiff rested after presenting his own testimony and that of an official of the Alabama Power Company. Subsequent events are disclosed by the following judgment entry:

'Ruling On Motion To Exclude Evidence, And Non Suit.

'On this the 25th day of November, 1953, come the parties by attorneys, and the issues being joined and the plaintiff having presented his evidence and rested in this cause, thereupon the following motion was made by each defendant separately and severally, to-wit: 'Defendants, separately and severally, move to exclude the evidence in this case and that the defendants, separately and severally, be discharged, and that judgment be entered in their favor, separately and severally.' And after due consideration of the said motion, It is ordered and adjudged by the Court that said motion be and the same is hereby sustained as to the defendants Roy L. Wallace and E. L. Mount, and further that said motion be and the same is hereby overruled as to the defendant, Carl Temple. And to all of these rulings of the Court, the plaintiff duly excepts.

'Comes now the plaintiff and hereby takes a non suit, due to adverse rulings by the trial Court, with Bill of Exceptions to the Supreme Court of Alabama. It is therefore ordered and adjudged by the Court that this cause stand dismissed and held for naught, and that the defendants recover judgment against the plaintiff for the costs of suit, for which let execution issue.'

From that judgment the plaintiff below has appealed to this court. It is a final judgment which 'put the case out of court.' Wood v. Coman, 56 Ala. 283, cited approvingly in Martin v. Alabama Power Co., 208 Ala, 212, 94 So. 76; Thomas v. White, 244 Ala. 128, 12 So.2d 567; Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530.

We will consider only those assignments of error which challenge the trial court's action in excluding the plaintiff's evidence on motions of the defendants Wallace and Mount. They are the only assignments of error argued in brief of counsel for appellant and it is well settled that assignments of error not argued in brief are treated as waived. Eddleman v. Cade, 261 Ala. 154, 73 So.2d 362. Moreover, on this appeal we are limited to a consideration of only the rulings of the court which culminated in and superinduced the taking of the nonsuit. Mullins v. Alabama Great Southern R. Co., 239 Ala. 608, 195 So. 866; Cauble v. Boy Scouts of America, 250 Ala. 152, 33 So.2d 461.

The practice of entertaining a motion by the defendant, at the conclusion of the plaintiff's evidence, to exclude the evidence has been condemned and criticized. Dorough v. Alabama Great Southern Ry. Co., 221 Ala. 305, 123 So. 602; Johnson v. Shook & Fletcher Supply, 245 Ala. 123, 16 So.2d 406, yet the trial court will not be put in error for doing so where the plaintiff's evidence does not make out a prima facie case. See Dorough v. Alabama Great Southern Ry. Co., supra, overruling in this respect Stewart Bros. v. Ransom, 200 Ala. 304, 76 So. 70; Mount Vernon-Woodberry Mills v. Little, 222 Ala. 605, 133 So. 710; W. E. Herron Motor Co. v. Maynor, 232 Ala. 319, 167 So. 793; Sharpe v. Western Ry. of Alabama, 234 Ala. 507, 175 So. 542; Roebuck v. Hooie, 250 Ala. 363, 34 So.2d 460; Hamilton v. Browning, 257 Ala. 72, 57 So.2d 530; Riley v. Riley, 257 Ala. 636, 60 So.2d 432; Atlantic Coast Line R. Co. v. French, 261 Ala. 306, 74 So.2d 266.

On August 19, 1952, the Alabama Power Company disconnected the electricity running into plaintiff's dry cleaning plant at 817 East Broad Street, Gadsden. Plaintiff owned the building in which he operated the dry cleaning plant. He constructed the building in 1946 or 1947 and had continuously operated a dry cleaning establishment in part of the building. The Alabama Power Company acted in accordance with a written order signed by the defendants Temple and Mount, a copy of which order went to Mayor Wallace. Temple signed the order 'as Electrical Inspector of the City of Gadsden, Alabama' and Mount signed as 'City Fire Marshall, City of Gadsden, Alabama.' The reason given to the Alabama Power Company for the order was 'because the electrical installations or wiring on said premises are in violation of the provisions and requirements of the Official Building Code of the City of Gadsden, Alabama.'

Section 103.1, Chapter 1 of the Building Code of the City of Gadsden provides:

'All electrical installations, regardless of type, which are unsafe or which constitute a fire hazard, or are otherwise dangerous to human life, or which in relation to existing use constitute a hazard to safety by reason of inadequate maintenance, dilapidation, obsolescence or abandonment are, severally in contemplation of this section, unsafe electrical installations. All such unsafe...