Johnson v. Alabama Power Co.

• Decision Date: 28 February 1935
• Docket Number: 7 Div. 302.
• Citation: 230 Ala. 91,159 So. 695
• Parties: JOHNSON v. ALABAMA POWER CO.
• Court: Alabama Supreme Court

159 So. 695

230 Ala. 91

JOHNSON v. ALABAMA POWER CO.

7 Div. 302.

Supreme Court of Alabama

February 28, 1935

Appeal from Circuit Court, Calhoun County; W. B. Merrill, Judge.

Action for damages by Vera Johnson, as administratrix of the estate of Horace K. Johnson, deceased, against the Alabama Power Company. From a judgment of nonsuit, plaintiff appeals.

Reversed and remanded.

E. L Roberts, of Gadsden, Merrill, Jones & Whiteside, of Anniston and McCord & McCord, of Gadsden, for appellant.

Knox Acker, Sterne & Liles, of Anniston, and Martin, Turner & McWhorter, of Birmingham, for appellee.

KNIGHT Justice.

Appellant's intestate was killed by coming in contact with a broken wire charged with a current of electricity of high and dangerous voltage. The electricity was generated and supplied by the appellee to the city of Piedmont, which owned and operated a system for distributing the current, bought of appellee, to the inhabitants of the city and for lighting the city.

The court below sustained demurrers to the several counts of the complaint, and, on account of the adverse ruling, the plaintiff took nonsuit, and appeals. The sole question presented here for review arises upon the sufficiency of the several counts, or of either of them, to state a cause of action against the defendant, the generator or seller of the electricity to the city. Confessedly, under the averments of the pleading, the defendant had no ownership in, control or management of, the equipment or facilities used or employed for the distribution of the electricity after it left the defendant's substation and entered the distribution system of the city.

The death of plaintiff's intestate is ascribed to the defective condition of one of the city's conduit wires.

The plaintiff's intestate, a city letter carrier, while engaged in his duties as such letter carrier, and while traveling along or across Second avenue of the city of Piedmont, came into contact with a live wire, which, on account of its defective condition had broken, and fallen "along side or across" said avenue.

This court has had occasion to consider the liability of the generator of electricity, which it sells and supplies to others, for distribution over wires of the purchasers, and over which wires the generating company has no control or supervision.

In the case of Alabama Power Co. v. Jones, 212 Ala. 206, 101 So. 898, 900, this court cited with approval the following statement of the law from the case of Hoffman v. Leavenworth Light, Heat & Power Co., 91 Kan. 450, 138 P. 632, 50 L. R. A. (N. S.) 574: "The furnishing of electric current to distant places is a necessity of modern civic and industrial life, but it is in strict line with the dictates alike of law, morals, and humanitarianism that one who generates and sells this dangerous agency should use proper care to avoid resulting harm. When such power is simply furnished to a responsible party for use in a system of poles, wires, and appliances owned and controlled by such party, and in proper condition to receive the current safely, the furnishing party is not required to maintain inspection, or to see at its peril that such equipment is kept safe, but, so long as not chargeable with knowledge of defect therein, it may justly and reasonably assume that such safety will be maintained; justly and reasonably, because the using company is presumed to act in accordance with prudence and safety until the contrary appears. The fact that in furnishing such power for arclighting the seller undertakes to supply and maintain the necessary lamps and carbons does not change the rule, for such party has the same right as before to assume that the purchaser will act with due care. In order, therefore, to hold the seller liable, it must appear that it continued to furnish and turn on the dangerous current after knowing that the purchaser had permitted the equipment to become defective. From the time of acquiring such knowledge, the seller's contract duty cannot be required, save on condition that such defect be remedied, for otherwise it must thenceforward furnish a dangerous force, knowing that life and limb might be imperiled by reason of such defect, which neither a contract nor the law nor the common instincts of humanity could require of any one."

In 20 Corpus Juris, page 365, it is stated as a general principle of law in such case: "Whatever the rule may be in this regard, knowledge of the defective and dangerous condition of a customer's appliances will charge even a mere guarantor and supplier of electricity with liability for consequences, where current is thereafter supplied to such defective and dangerous appliances."

The rule declared in the Hoffman Case, supra, has received the approval of this court, and is now the law on the subject in this jurisdiction.

In order, therefore, to make the generator of the electricity liable it must be averred, and proved, that it continued to furnish the dangerous current after knowledge that the purchaser had permitted the electrical equipment to become defective, and therefore dangerous to life and property. Whenever such condition exists, and the seller has notice or knowledge of it, it becomes his duty to cut off service from the purchaser. We so held in the case of Alabama Power Co. v. Sides, 155 So. 686.

It is alleged in count one of the complaint, omitting averments not presently necessary to be stated: "And plaintiff avers that on said date; and for sometime prior thereto, said wires and distribution system in said City of Piedmont as a whole were in a very run down and dangerous and defective condition; that said wires along which defendant transmitted and maintained said electric current were old and the insulation from the same had practically rotted off, and said wires were sagging and were strung through trees and on defective poles, and were otherwise in such a dangerous and defective condition that said wires throughout said system were likely at any time to break, or to fall to the ground along the public streets, sidewalks and highways of said City of Piedmont, and become dangerous to the life of any and all persons traveling said streets and highways. That the...