General Telephone Co. of Ala. v. Cornish

• Decision Date: 05 July 1973
• Parties: GENERAL TELEPHONE COMPANY OF ALABAMA, a corporation, v. Lucy R. CORNISH, Administratrix of the Estate of Ina Lucille Riley, Deceased. S.C. 199.
• Court: Alabama Supreme Court

Page 541

280 So.2d 541

291 Ala. 293

GENERAL TELEPHONE COMPANY OF ALABAMA, a corporation, v. Lucy R. CORNISH, Administratrix of the Estate of Ina Lucille Riley, Deceased.

S.C. 199.

Supreme Court of Alabama.

July 5, 1973.

Rehearing Denied Aug. 2, 1973.

A. A. Smith, Hartford, Alto V. Lee, III, Dothan, for appellant.

Truman Hobbs and Albert W. Copeland, Montgomery, James W. Kelly, Geneva, for appellee.

HARWOOD, Justice.

This was an action for wrongful death filed by Lucy Cornish, as administratrix of the estate of Ina Lucille Riley, against General Telephone Company, in the Circuit Court of Geneva County, Alabama.

The complaint consisted of one count charging that the defendants, General Telephone Company and X Corporation, a fictitious defendant, were guilty of negligence in the erection, maintenance and installation of telephone service so as to permit the passage of lightning through the telephone system into the home of plaintiff's intestate, who was killed as a proximate result of such negligence.

Evidence shows that the decedent, Mrs. Riley, was talking on the telephone in her home a few miles from Hartford, Alabama, at about 8:00 P.M., on the evening of June 17, 1968. Within a few minutes of the beginning of her conversation on the telephone, lightning struck a tree approximately 170 feet from her home. The path of the lightning could be traced by the peeling of the bark down the tree and out a limb which was in close proximity to the telephone wire serving the Riley home. When the lightning struck, Mrs. Riley's husband was in the kitchen. Upon hearing the noise from the lightning, he hurried into the room where Mrs. Riley had been using the phone and found her lying on the floor dead, with the telephone receiver hanging from the phone.

Mrs. Riley had been talking with her sister in Donifay, Florida who testified that she heard an explosion and the telephone went dead.

Testimony was given to the effect that the deceased was sixty-nine years of age, active, and in general good health.

The plaintiff's evidence was directed toward establishing the negligence of the defendant telephone company by showing that the grounding system for the telephone in the Riley home was improperly installed by the defendant, and was unsafe.

As a witness for the plaintiff, Bud Hagler, an employee of the defendant, who was charged with the responsibility of installing and maintaining the telephone in the Riley home, testified that the grounding was improper and violated company instructions as to proper grounding. These instructions were given at the company school for installation and maintenance trainees and were similar to the provisions of the National Electrical Code which required a multiple ground. A multiple ground was defined as one which is connected to the water and electrical systems of the home serviced as well as to a metal rod driven in the ground. The witness stated that the requirement of a multiple grounding was to reduce the possibility of lightning injuring anyone using the telephone. It would take one man about one hour to install a proper ground.

Further testimony was given by another company employee, called by the plaintiff, that the cost of installing a proper ground would be approximately ten to fifteen dollars.

As to the condition of the telephone over which Mrs. Riley was speaking, there was evidence that it was replaced shortly following her death due to a short circuit and a tear in the membrane within the receiver. The evidence also showed that the phone service in the area was disrupted for some time during the evening of Mrs. Riley's death.

Two witnesses for the plaintiff, who qualified as experts in the field of electricity, testified that they had individually administered tests to the telephone ground system in the Riley home. Both witnesses stated that they found the resistance of the telephone ground insufficient based on the requirements given in the National Electrical Code.

In defense, the defendant presented testimony of a witness who had conducted a similar test and achieved a different result. This witness also stated that certain synthetic fibers within the telephone receiver were undamaged in his opinion.

Defendant also presented testimony to the effect that the telephone lines were strung on REA electrical poles and that these poles were properly grounded.

The District Attorney of Geneva County testified on behalf of the defendant and stated that the report he received from Dr. Rehling, State Toxicologist, on the autopsy of Mrs. Riley, stated that she died of natural causes and that he had received no further communication from Dr. Rehling advancing a different theory.

At the close of the evidence the jury returned a verdict for the plaintiff and assessed damages at $150,000.00, and judgment was entered pursuant to this verdict.

Defendant's motion for a new trial being denied an appeal was perfected to this court from both the judgment and the order denying the motion for a new trial.

Appellant's assignment of error No. 1 asserts as error the refusal of the court to give the general affirmative charge requested in writing by defendant. In support of this assignment, defendant argues that the complaint named as defendants 'General Telephone Company of Alabama, a Corporation, and X Corporation, a fictitious defendant, whose name is otherwise unknown to plaintiff but which will be substituted by amendment when discovered,' and notwithstanding this averment the plaintiff failed to amend her complaint so as to strike X Corporation.

In Roberts Construction Co. v. Henry, 265 Ala. 608, 93 So.2d 498, there were multiple defendants and a verdict was returned against a sole defendant. This court wrote:

'There was no improper joinder of Count one as amended under allegations that the plaintiff was injured by the negligence of the defendants. There is no doubt that where several defendants are joined in an action, the plaintiff is entitled to go to the jury as to that defendant against whom he has made out his case, although a directed verdict may be ordered as to the others. § 139, Title 7, Code of 1940.'

In Lovelace v. Miller, 150 Ala. 422, 43 So. 734, this court stated:

'* * * Going back to Chitty on Pleading, we find the law stated in the following language: '* * * Where in point of fact and of law several persons might have been guilty of the same offense, the joinder of more persons than were liable, in a personal or mixed action in form ex delicto, constitutes no objection to a partial recovery and one of them may be acquitted, and a verdict taken against the others.' * * * 'In actions ex delicto a joint liability need not be proved, and consequently a misjoinder of defendants will not defeat a recovery against any or either proved guilty."

In Southern Ry. Co. v. Arnold, 162 Ala. 570, 50 So. 293, this court said:

'It is a well-settled rule of law that in actions of tort against two or more defendants jointly, where the proof fails as to any one, a verdict may be rendered against the other or others as to whom the proof is sufficient without thereby in law constituting a variance.'

At 53 Am.Jur., Trial, Sec. 1040, it is set forth:

'* * * But if in a suit against more than one defendant some defendants are not served, and have not otherwise made themselves subject to the jurisdiction of the court, as by entering a voluntary appearance, or have been dismissed during trial, or if it is apparent from the issues made by the pleadings that a recovery is not sought against all the defendants, a verdict 'for plaintiff' will not be construed as one against the defendants who are not before the court or against whom no recovery is sought.'

In an annotation to be found in 47 A.L.R.2d 800, at 810, is the following statement:

'The holdings of the courts are based on two lines of reasoning used either singly or combined. One line of reasoning is to the effect that the verdict is unambiguous and clearly shows that it was meant to apply only to those defendants who were properly before the court, while the other line of reasoning refers to the lack of standing of the defendant or defendants against whom the verdict was rendered to complain about the non-inclusion of the defendant who had not been served with process.'

In the instant case only one defendant was served. He had his day in court. It was this defendant against whom the plaintiff made out a case. The record resolves any uncertainty as to this and no prejudice resulted to the appellant from the fact that the fictitious defendant was not struck from the complaint.

Assignments of error Nos. 3, 4, 5, 6, 7, 8, 9, and 10 relate respectively to the action of the court in giving at appellee's request written charges 1, 2, 3, 5, 7, 9, 11, and 12. From our examination it appears that all of the charges given at appellee's request are correct statements of legal principles applicable to the issues of this case, and were therefore properly given.

As to Charge 1, see Motor Terminal & Transportation Co. v. Millican, 244 Ala. 39 12 So.2d 96; as to Charge 2, see Alabama Power Co. v. McIntosh, 219 Ala. 546, 122 So. 677; as to Charge 3, see Motor Terminal & Transportation Co. v. Millican supra; as to Charge 5, see Welch v. Evans Bros. Const. Co., 189 Ala. 548, 66 So. 517; as to Charge 7, see Airheart v. Green, 267 Ala. 689, 104 So.2d 687; as to Charge 9, see Southern Bell Telephone & Telegraph Co. v. McTyer, 137 Ala. 601, 34 So. 1020; as to Charge 11, see Alabama Power Co. v. McIntosh, supra; and as to Charge 12, see Alabama Power Co. v. Irwin, 260 Ala. 673, 72 So.2d 300.

Under assignment of error No. 27, the appellant argues that the lower court erred in voerruling its motion for a new trial on that ground asserting the excessiveness of the damages awarded.

Damages in wrongful death action are penal in nature and are largely within the discretion of the jury. In Airheart v. Green, 267 Ala. 689, 104 So.2d 687, this court ...