Moseley v. Alabama Power Co.

• Citation: 246 Ala. 416,21 So.2d 305
• Decision Date: 01 March 1945
• Docket Number: 7 Div. 779.
• Parties: MOSELEY v. ALABAMA POWER CO.
• Court: Supreme Court of Alabama

21 So.2d 305

246 Ala. 416

MOSELEY v. ALABAMA POWER CO.

7 Div. 779.

Supreme Court of Alabama

March 1, 1945

A. E. Hawkins and C. J. Scott, both of Fort Payne for appellant.

C A. Wolfes, of Fort Payne, and Martin, Turner & McWhorter of Birmingham, for appellee.

GARDNER Chief Justice.

Plaintiff seeks punitive damages for the death of his minor daughter Ida Lee Moseley, eight years of age, who came in contact with a heavily charged electric wire. Sec. 119, Title 7, Code 1940. The original defendants were P. G. and Irby Guest, upon whose premises the wire was maintained, and the Alabama Power Company, a corporation, that furnished and supplied the owners with the electricity. Upon demurrer being sustained to counts 1, 2, A, and B, plaintiff filed count C, which was held good against the demurrer interposed thereto, and upon which the cause proceeded to trial. In the progress of the trial plaintiff struck from the complaint the individuals, P. G. and Irby Guest, and at the conclusion of the evidence the court gave for the defendant Alabama Power Company the affirmative charge in its behalf, as duly requested. From a judgment for the defendant, the plaintiff prosecutes this appeal on the record proper, and assigns as error the ruling of the court in sustaining demurrers to counts 1, 2, A, and B.

These assignments of error are argued in bulk. The long-recognized rule has been that under such circumstances, when any one assignment is not well taken, then no reversible error is made to appear. City of Montgomery v. Moon, 208 Ala. 472, 94 So. 337; Wells Co. v. Lane, 217 Ala. 10, 115 So. 77; Bush v. Bumgardner, 212 Ala. 456, 102 So. 629; Sovereign Camp, W. O. W. v. Davis, 242 Ala. 235, 5 So.2d 480.

But it is likewise well established that several assignments of error raising kindred questions may be presented under the same argument. And in the Wells Company case, supra, this Court took occasion to correct an evident misapprehension of the ruling in this regard, saying [217 Ala. 10, 115 So. 78]: 'It frequently occurs that a number of assignments of error are so related as may well be argued together in brief, and such method of treatment under such circumstances is entirely proper.'

But we think it clear enough these assignments of error are not so related as may be argued together in brief. Counts 1 and 2 are practically the same, except that language is interposed in count 2 so as to attempt a statement of a wanton count, while count 1 is for simple negligence. But the salient facts of these two counts are practically identical. They are to the effect that P. G. and Irby Guest were the owners of a pasture in the village of Geraldine, Alabama, around which was a wire fastened to posts 24 to 30 inches above the ground and extending a distance of 1,000 feet or more around such pasture lot, said wire being charged with a high and dangerous voltage of electricity. The defendant, Alabama Power Company, a public utility corporation, engaged in operating an electric distributing system in DeKalb County, furnishing and supplying its customers with electricity for domestic and mechanical purposes for a reward, supplied the high voltage electric current to the individual defendants, its customers. It was with this wire so heavily charged with electricity that the plaintiff's minor child came in contact and was instantly killed.

The only facts upon which counts 1 and 2 seek to rest a charge of negligence are, that this pasture lot in the village of Geraldine, Alabama, was surrounded by public roads, pathways, homes, and Geraldine High School. Upon demurrer being sustained to these counts, the plaintiff added counts A and B, and as for negligence in those counts attempted to set up a state of facts concerning the use of the property by others to such an extent as to charge the owners and the public utility with a knowledge that children were accustomed to play on the lots, all in connection with the dangerous character of electricity. This theory of liability rested upon the matter of reasonable anticipation on the part of the owners and the utility of the presence of children on the property and the dangers attendant thereto. These theories of liability are found treated in 18 Am.Jur. p. 463; 38 Am.Jur. p. 779; 45 C.J. p. 748; 14 A.L.R. p. 1038; Curtis on Law of Electricity, § 510; Robbins v. Athol Gas & Electric Co., 236 Mass. 387, 128 N.E. 417; Romana v. Boston Elev. R. Co., 226 Mass. 532, 116 N.E. 218; Davis v. Boston & M. R. R., 70 N.H. 519, 49 A. 108; 17 A.L.R. p. 853 et seq.; and discussed to some extent in Alabama Power Co. v. Cooper, 229 Ala. 318, 156 So. 854; and Littleton v. Alabama Power Co., 243 Ala. 492, 10 So.2d 757, cited in Sullivan v. Alabama Power Co., Ala., 20 So.2d 224.

In counts 1 and 2 is found no intimation of any such use of property or any such theory of liability. We are fully persuaded, therefore, that counts A and B are by no means so related to counts 1 and 2 as to justify the assignments of error based upon the rulings of the court thereon being argued in bulk.

We are impressed, however, from a review of the record, that plaintiff has suffered no injury by reason of the application of this rule in the instant case, for the reason that, upon the ruling of the court sustaining demurrer to counts A and B, plaintiff interposed count C, which merely emphasized and elaborated somewhat upon the use of the property by others, which count was held sufficient, and upon which the cause proceeded to trial. And we find, from a careful reading of brief of counsel for plaintiff, the argument appears to be directed solely to counts 1 and 2, all of which leaves the impression, as the appeal here is upon the record proper and without evidence, that the difficulty of the plaintiff was the failure to make proof of the necessary averments in regard to the use of the property.

Coming, therefore, to a consideration of counts 1 and 2, we are of the opinion the court committed no error in sustaining demurrer thereto. In considering these counts we must, of course, observe the well established rule that they are to be construed most strongly against the pleader.

It must be borne in mind that under our authorities, which are in accord with the decided weight of authority elsewhere (38 Am.Jur. p. 779), a child may be a trespasser just as well as an adult. Ford v. Planters' Chemical & Oil Co., 220 Ala. 669, 126 So. 866; Luallen v. Woodstock Iron & Steel Corp., 236 Ala. 621, 184 So. 182.

It may be observed, also, that counsel for plaintiff make no insistence that recovery could be rested in this case upon the doctrine of the so-called 'turnta...