Lollar v. Alabama Power Co.

• Decision Date: 06 April 1979
• Parties: Jimmy LOLLAR v. ALABAMA POWER COMPANY. 77-659.
• Court: Alabama Supreme Court

Page 9

371 So.2d 9

Jimmy LOLLAR v. ALABAMA POWER COMPANY.

77-659.

Supreme Court of Alabama.

April 6, 1979.

Rehearing Denied May 4, 1979.

J. Richard Carr, James D. Pruett, Gadsden, for appellant.

Thomas W. Christian of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, and Roger C. Suttle of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.

PER CURIAM.

Plaintiff Jimmy Lollar was helping his friend, Joe Howard, erect a 90-foot CB antenna when the antenna fell against high power lines of Alabama Power Company. He was severely injured. Lollar sued the Power Company, claiming that the "electric lines apparently were built without authority and therefore constituted a trespass to private property with attendant danger to plaintiff and others so situated."

After trial, the jury returned a verdict for the Power Company.

Lollar appeals from the judgment entered on the adverse jury verdict, contending that the trial court erred in giving two written requested charges:

"DEFENDANT'S CHARGE 'A': The Court charges the Jury that the Defendant, Alabama Power Company was not guilty of trespass, as a matter of law, in maintaining its power lines across the property of Joe Louis Howard and Annette Howard at the time of Plaintiff's accident."

"DEFENDANT'S CHARGE 'C': The Court charges the Jury that the undisputed evidence in this case establishes that the Defendant, Alabama Power Company, had acquired an easement by prescription and had the legal right to maintain its power lines across the property of Joe Louis Howard and Annette Howard at the time Plaintiff was injured."

The Power Company contends that Lollar never properly objected to the giving of the two instructions. It also contends that the evidence clearly showed that it had obtained an easement by prescription; therefore, the maintenance of its power lines over the Howard property was lawful. The colloquy between the court and counsel for both sides is helpful:

"THE COURT: * * * Now then, you have got some here regarding prescription giving the Power Company the legal right to maintain the power line across the property. I am inclined to think that those are good charges, that they had it by prescription. Do you have any argument on that?

"MR. CARR: No, sir, I haven't researched it. They probably do have a prescriptive right. I don't think they have proved it though, Judge. There are some things that you have to prove for prescription. It just doesn't come out of the air. Now, where is the proof that they have a prescriptive right? I think probably that they do have, but I don't recall any proof toward that end. Of course, I think the charge should be based on the proof, not on what I think or what the Court might think. I don't recall any proof about any prescription.

"THE COURT: Other than the lines have been there since about 1927.

"MR. CARR: Yes, sir. If that is sufficient. If that in itself is

"MR. SUTTLE: And if they have refused to relocate or to move the lines at the request of Joe Louis Howard

"MR. CARR: No, they agreed to do it but said he would have to pay a lot of money for it.

"MR. SUTTLE: I know, but that is as far as expense.

"MR. CARR: Well, the Judge is bound by the evidence. I think it is uncontradicted.

"MR. CHRISTIAN: The elements, Judge, I don't want to be repetitious about this. You don't put somebody on and say 'are you hostile or ' "It comes from what the facts are, and the fact that it has been there fifty years is sufficient under the law.

"MR. CARR: But we don't know but what it has been moved and put back. You see, they have some proof. The burden is

"I don't want to be repetitious either. I just don't think they have proved their prescriptive rights.

"MR. SUTTLE: It was proved by Ray Kitchens.

"THE COURT: I thought Kitchens testified that it has been there continuously since 1929.

"MR. PRUETT: '38, I think, is what Ray said, but he thought it went back before that.

"MR. CARR: What about you charging on what prescription is and let the jury say whether they have prescriptive right.

"MR. SUTTLE: We think it is a matter of law under the evidence, your Honor.

"MR. CHRISTIAN: That case holds that it is beyond inquiry after 20 years.

"MR. CARR: Well, if you think the evidence sustains prescription then it probably does. I don't personally think

"I would hate to be in trying a case to prove prescriptive right with the evidence that is before the Judge. I think that the same burden is on them as it would be on anybody to prove prescription.

"MR. PRUETT: Judge, the evidence as it is about prescription is uncontradicted. If you think that as a matter of law makes that prescription then I guess you just have to charge the jury that we cannot recover for trespass.

"THE COURT: Well, you are not suing for trespass.

"MR. PRUETT: Well, I don't understand

"THE COURT: Really, it is a side issue it seems to me.

"MR. SUTTLE: To me too, your Honor.

"THE COURT: It doesn't really affect the question whether or not they were negligent.

"MR. SUTTLE: I don't think so.

"MR. CARR: Well, I think we would all hate to get a reversal on something that is not a

"What have you got in mind to say? I might just agree to it. What is the charge?

"THE COURT: I was going to give the charges they have got here that they have the legal right to maintain by prescription maintain the lines by prescription.

"MR. CARR: You are determining that as a matter of law?

"THE COURT: Well, I would think so under the evidence. I just

"MR. CARR: Well, frankly I haven't researched it, but I just don't believe the evidence is before the Court.

"THE COURT: Whether or not even if they were trespassing I don't think it really has any bearing on this particular case.

"MR. CARR: Well, could you say that some other way than saying they have a legal right? Could you strike those allegations

"MR. PRUETT: Why don't you just tell the jury, Judge, that the plaintiff cannot recover because of the fact that the lines are located

"THE COURT: Well, they have requested these charges. Do you all want to withdraw these charges?

"MR. CHRISTIAN: No, sir. They have raised that as a big issue in this case.

"MR. SUTTLE: That is part of the pleadings in the complaint, your Honor.

"THE COURT: I don't think that the plaintiff in this case has any right to complaint to recover anything if they were even if they were trespassing.

"MR. CARR: It has to do with the burden though, Judge. They have a franchise to run on the public streets and the only way other than that they could get on private property would be through the process of an easement.

"THE COURT: All right, but they can get on private property with an easement or in this case by prescription. The prescription would have run probably before Howard ever got possession of the property.

"MR. CARR: It is in the nature of a condemnation without damages. I have tried a case on that basis. Let me discuss that with Mr. Jim.

"MR. SUTTLE: Judge, you can acquire an easement by a deed or adverse possession or by prescription. Three different ways.

"MR. CARR: Could you cut that down to one those all say the same thing and then we wouldn't object to it.

"MR. SUTTLE: Judge, we would like the court to rule on the strength of what we ask the Court to charge.

"MR. CARR: Just give it in your oral charge. I don't think that they have the right to have that said four times just by

"THE COURT: Well, I kind of agree with you.

"MR. CARR: If you would give it in the oral charge then it would cure all of our complaints.

"MR. PRUETT: Sure, you could cover it orally, Judge. Just tell them they cannot award damages to the plaintiff because the Power Company was not where it had a right to be and that will take care of it.

"THE COURT: All right, I will give Defendant's Charge C.

"MR. SUTTLE: Well, we want Number 1 there, your Honor. A rather.

"THE COURT: All right, I'll give A and C. The others are repetitious. To me it is kind of like the fact that a man doesn't have a drivers license and is involved in a wreck. The fact that he doesn't have a drivers license doesn't have a thing to do with his negligence.

"MR. PRUETT: That's what I say, just tell the jury that that is not an element of liability if you want to.

"THE COURT: Well, I will have to give their charges.

"MR. PRUETT: You don't have to give them at all, your Honor.

"THE COURT: I know, but I have got to charge them somehow.

"MR. CARR: If you did it in the oral charge in your own inimitable way we wouldn't have to have Tom's pros read to them so many times."

The "repetitious" instructions referred to by the court and counsel during the colloquy were two requested charges by the Power Company which the court refused to give:

"DEFENDANT'S CHARGE 'B': The Court charges the Jury that the Defendant, Alabama Power Company, had the legal right to maintain its power lines across the property of Joe Louis Howard and Annette Howard at the time Plaintiff received his injury.

"DEFENDANT'S CHARGE 'D': The Court charges the Jury that Defendant, Alabama Power Company, had acquired an easement by prescription to maintain its power lines across the property of Joe Louis Howard and Annette Howard at the time Plaintiff had his accident."

The trial judge read Charges A and C during his oral charge. When he concluded his charge to the jury, and inquired of counsel if they had any objections, plaintiff's counsel replied: "No objections."

This case is due to be affirmed by applying Rule 51, ARCP, which in pertinent part reads:

" . . . No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection."

Since the adoption of ARCP, our appellate courts have interpreted this portion of the rule in varying factual contexts....