Peoples Telephone Co. v. Buchanon

• Decision Date: 01 December 1953
• Docket Number: 7 Div. 213
• Citation: 68 So.2d 854,37 Ala.App. 371
• Parties: PEOPLES TEL. CO. v. BUCHANON.
• Court: Alabama Court of Appeals

Page 854

68 So.2d 854

37 Ala.App. 371

PEOPLES TEL. CO. v. BUCHANON.

7 Div. 213.

Court of Appeals of Alabama.

Dec. 1, 1953.

Hugh Reed, Centre, for appellant.

Keener & Keener, Centre, for appellee.

HARWOOD, Judge.

This cause was tried by the court below without the intervention of a jury. Upon completion of the hearing the court entered a judgment in favor of the plaintiff and assessed his damages at $150. Defendant's motion for a new trial being overruled appeal was perfected to this court.

At the opening of the trial the court announced that the case would be tried on counts 4, 5, 6, and 7 of the complaint. During the course of the trial the court announced that count 7 would go out.

Demurrers were filed to these counts, but no rulings were made thereon by the court, nor was any judgment entered relative to the demurrers. In this condition nothing is presented in so far as the technical sufficiency of the counts is concerned. McPeters v. White, 31 Ala.App. 89, 12 So.2d 568; National Life and Accident Ins. Co. v. Hannon, 22 Ala.App. 483, 118 So. 170.

Appellant's assignments of error 1, 2, and 3 respectively assert as error the action of the court in overruling respective demurrers to counts 4, 5, and 6. In view of what has been said above these assignments are without merit.

Counsel for appellant further insist that counts 4, 5, and 6 respectively, fail to state a cause of action, as distinguished from defectively pleading one, and therefore cannot sustain a judgment. See John E. Ballenger Const. Co. v. Joe F. Walters Const. Co., 236 Ala. 548, 184 So. 275.

This point is sufficiently before us by assignment of error 5 which asserts as error the action of the lower court in overruling appellant's motion for a new trial, one of the grounds of said motion being that the judgment was contrary to the law.

Count six of the complaint avers that 'heretofore and on to wit; January 6, 1950 the defendant operated a telephone exchange in and near the Town of Centre, Alabama, and in connection with this business maintained telephone wires along the Alabama State Highway leading from Centre, Alabama, to Leesburg, Alabama, said wires being strung on poles, and the plaintiff further avers that as said time the defendant so negligently maintained a pole and the wires suspended thereon at a point, to wit; about two miles west of the Town of Centre, Alabama, and East of and at or near the home of Van Davis, that said pole and wires were negligently permitted to fall into and remain in said Alabama State Highway at a point, to wit; two miles west of the town of Centre, Alabama, and East of and at or near the home of Van Davis, and that at said time and place the plaintiff's 1938 Ford automobile collided with the said pole or wires lying in said Alabama State Highway, and as a proximate result and consequence thereof the plaintiff's car was damaged and demolished, hence this suit.'

Admittedly the count is ineptly drawn. However, it is provided by Section 570, Title 7, Code of Alabama 1940, that:

'No judgment can be arrested, annulled, or set aside, for any matter not previously objected to, if the complaint contain a substantial cause of action.'

The strict rule indulged against a pleading on demurrer is inapplicable when the sufficiency of a complaint is attacked upon the judgment, and when attacked, all doubts and intendments should be resolved in favor of the sufficiency of the complaint. Werten v. K. B. Koosa and Co., 169 Ala. 258, 53 So. 98; City of Anniston v. Greene, 26 Ala.App. 513, 162 So. 570.

In light of the above principles it is our conclusion that count six was sufficient as against the method of attack sought to be employed against it on this appeal. The defects in it were such as might readily have been amended had the court's ruling on appropriate demurrer been obtained. City of Anniston v. Greene, supra, and cases therein cited.

In the trial below the plaintiff testified that about 8 o'clock on a night in January 1950 he was driving towards Centre, and at a point two miles from Centre, and as he rounded a curve he saw a telephone pole and wires across the road. At the time he was driving at a speed of about 35 miles per hour and although he 'went for' the brakes he was unable to stop his car before hitting the pole as he was right at it when he first saw it.

The night was foggy, but the plaintiff did not observe any wind.

The plaintiff further testified that he examined the pole after the accident and 'the inside of the pole was rotten, a little shell around the edge outside, and all the inside was rotten, and the part of the pole that had been in the ground was 'swunk,' and it had just pulled out of the ground.' He had observed this pole before the accident and it had another little pole braced against it attached by about three twenty-penny nails and a piece of wire. After the accident the little pole had fallen loose from the larger one. He did not know how long the pole had been across the road before he hit it.

The plaintiff's son, who was in the car at the time of the accident, gave testimony largely corroborative of the plaintiffs.

Lathan O'Briant testified that he arrived at the scene a few moments after the accident.

He had noticed the pole prior to the accident. It stood about 15 feet, with a prop set against it and attached by two or three strands of telephone wire wrapped around the two poles.

After the accident the telephone pole was broken and splintered. The bottom of the pole was about 10 inches in diameter and had rotted down to a diameter of 6 or 7 inches.

This witness further testified that he would say a pretty good gale of wind was blowing on this night.

For the defense Mr. L. F. Gilliland testified that he had been employed by the defendant for the past 15 to 18 years. He did 'construction, maintenance, installing, and whatever there is to do.'

He is familiar with the proper method of constructing telephone lines, and the defendant company tries to follow standard procedures of construction.

During the past 18 years he has inspected the company's lines at the point of the accident; the summer before the accident an extra cross arm had been put on all the poles on this circuit, and each pole had been inspected by driving a bar into it below ground to see if it was rotten underneath, and also by striking the...