Tallapoosa River Elec. Co-op., Inc. v. Burns

• Decision Date: 17 November 1960
• Docket Number: 5 Div. 704
• Citation: 271 Ala. 435,124 So.2d 672
• Parties: TALLAPOOSA RIVER ELECTRIC COOPERATIVE, INC. v. Robert T. BURNS et al.
• Court: Alabama Supreme Court

Page 672

124 So.2d 672

271 Ala. 435

TALLAPOOSA RIVER ELECTRIC COOPERATIVE, INC. v. Robert T. BURNS et al.

5 Div. 704.

Supreme Court of Alabama.

Nov. 17, 1960.

W. C. Hines, LaFayette, J. M. Williams, Jr., and Rushton, Stately & Johnston, Montgomery, for appellant.

Joe T. Burns, Wedowee, and Lewis H. Hamner, Jr., Roanoke, for appellees.

LIVINGESTON, Chief Justice.

Robert T. Burns and the Cosby-Hodges Milling Company, a Corporation, brought suit against the Tallapoosa River Electric Cooperative, Inc., a Corporation, for causing the death of some 2100 baby chicks. The jury returned a verdict for $1500. The defendant moved the court for a new trial. On hearing he motion for a new trial, the trial judge overruled said motion on the plaintiff's filing a remittitur of all damages in excess of $1,050, which remittitur was filed by the plaintiffs, and the defendant appealed.

The original complaint contained two counts based upon the simple negligence of the defendant in its failure to furnish electrical current in sufficient quantities to properly heat plaintiffs' brooder houses, Demurrers were interposed to these two counts and overruled. A third count, also for simple negligence, was added by amendment, but the demurrers were not refiled to the complaint as amended. The facts are, in substance, as follows:

Burns, a farmer in Randolph County, contracted with the Cosby-Hodges Milling Company to raise baby chicks. The milling company agreed to furnish the baby chicks and the feed. Burns agreed to supply the labor and the electricity for running the brooder houses, and it was further agreed between the parties that when the baby chicks were 14 weeks old, the milling company would take them and pay Burns 20cents each for his time and labor.

The brooder houses were supplied with electricity by the defendant. About the 13th day of March 1957, the milling company sent Burns 7300 baby chicks which he put in his brooder houses. The electricity furnished by the defendant did not heat the brooder houses to the required degree, and as a consequence the baby chicks chilled, became sick, smothered, froze, and some 2100 died. In short, each of the three counts in the complaint is based on the simple negligence of the Cooperative in its failure to supply voltage high enough to heat the brooders to a proper degree of heat.

There are five assignments of error. No. 4 is based on the refusal of a requested written charge, but is not argued in brief and is, therefore, waived. Assignment No. 1 complains of the overruling of appellant's demurrer to Counts 1 and 2 of the complaint; Assignment No. 2 is the court's refusal to exclude the plaintiffs' evidence; Assignment No. 3 is based on refusal to the defendant of the general charge with hypothesis, and Assignment No. 5 is the overruling of appellant's motion for a new trial.

Appellant's Assignment of Error No. 1 complains of the trial court's action in overruling appellant's demurrer to Counts 1 and 2 of the complaint. We need not inquire into the sufficiency of Counts 1 and 2 on demurrer. It is clear enough that each of the Counts, 1, 2 and 3, presents the same issue, and evidence offered under either court was admissible under the others. The verdict is properly referrable to either count. Conceding the insufficiency of Counts 1 and 2, the trial court's action in overruling the demurrer thereto was error without injury, since the jury's verdict could be referred to Count 3 of the complaint which was not tested by demurrer. Louisville & Nashville R. Co. v. Grizzard, 238 Ala. 49, 189 So. 203; Hinkle v. Latta, 33 Ala.App. 567, 35 So.2d 521.

Appellant's Assignment of Error No. 2 is without merit. It is not reversible error to deny, in a civil case, the defendant's motion to exclude the plaintiff's evidence. McMullen v. Daniel, 229 Ala. 194, 155 So. 687; Brooks v. City of Birmingham, 31 Ala.App. 496, 19 So.2d 74.

Assignment of Error No. 3 is based on...