Town of Athens v. Miller

• Citation: 66 So. 702,190 Ala. 82
• Decision Date: 07 November 1914
• Docket Number: 728
• Parties: TOWN OF ATHENS v. MILLER.
• Court: Supreme Court of Alabama

66 So. 702

190 Ala. 82

TOWN OF ATHENS v. MILLER.

No. 728

Supreme Court of Alabama

November 7, 1914

Appeal from Circuit Court, Limestone County; D.W. Speake, Judge.

Action by May M. Miller, as administratrix, against the Town of Athens for damages for the death of her intestate. Judgment for plaintiff, and defendant appeals. Affirmed.

The pleadings and the facts sufficiently appear in the opinion.

The following is the order for the adjourned term:

Whereas, this term of this court expires by limitation of law at 12 p.m. Saturday, January 18, 1913; and whereas, there is now on trial in this court, unfinished, the case of May M Miller, as administratrix, etc., v. Town of Athens; and whereas it is evident to the court that this case cannot be completed before or by 12 o'clock p.m. on this day; and whereas, in the opinion of the presiding judge, it is expedient to hold an adjourned term for the completion of this case now on trial, and for the transaction of other business before the court undisposed of: It is ordered that this regular term be at this hour 11:30 p.m., January 18 1913, adjourned, to be immediately reconvened in adjourned session or term for the completion of the aforesaid cause and for other business, all of which is accordingly done, and this court is at this hour, 11:32 o'clock p.m. January 18, 1913, immediately reconvened in adjourned term as aforesaid. It is further ordered that, as this adjourned term is but a continuation of the regular term, the jury selected and trying this case be held to continue its consideration until they render a verdict or are discharged by the court.

[Signed] D.W. Speake, Judge.

Defendant moved to set aside, vacate, and annul the judgment rendered on January 20, 1913, because of said order, and because the judgment was rendered on Sunday. This motion was overruled.

The following is the hypothetical question objected to:

If an arc light carrying 2,300 or 2,400 volts were to come in contact with a secondary wire, each provided with insulation two or three years old, and there was a good ground on the one side or other of the plant system, what effect would that have on the secondary wire? And if, in any system of the character here, there should be a ground at some point, say on the eastern part of the line, and a person standing on the ground were to take hold of an arc light, or one of these socket lights, what effect would that have upon him? And if the insulation of an arc light wire carrying 2,300 or 2,400 volts was two or three years old, and should come in contact with a secondary wire with insulation two or three years old would it, or not, charge the secondary wire with its voltage if there was a ground on one side of the plant?

The following is charge 9:

In order to find a verdict for plaintiff, the evidence upon every point essential to his recovery must so preponderate in his favor as to produce in the minds of the jury a reasonable belief as to plaintiff's right of recovery.

J.E. Horton, Jr., and James G. Rankin, both of Athens, for appellant.

W.R. Walker, of Athens, for appellee.

MAYFIELD J.

The action is under the homicide statute, to recover damages for wrongful death. The town of Athens operates an electric light plant, for the purpose of furnishing electric lights to the public. The complaint alleges, and the proof practically without dispute shows, that intestate met his death by a powerful and dangerous current of electricity passing through his body while he was attempting to turn on an incandescent burner, which was furnished by the town to the intestate or his company in his or its capacity as a customer.

Various theories are advanced as to the cause of this heavy charge of electricity being on the wire or line to which the incandescent light was attached. It is agreed that this line should have carried only about 110 volts, and that such current was not dangerous to human life when used as intestate was supposed to have been using it. There were, however, other lines or wires used by the defendant, which carried the very heavy and dangerous voltage of 2,400; but whether these lines came in contact with the light-furnishing wire, so that the heavy charge passed into the less heavily charged commercial wire, or how the latter became so heavily charged, is not made to appear with certainty.

The complaint contained four counts. The negligence alleged in each of the counts is, in legal effect, that the said town of Athens negligently charged or allowed the wire that furnished said ice plant with electric light to become charged with an unreasonable, unnecessary, and dangerous amount of electricity from said primary wires, which was transmitted to plaintiff's intestate when he attempted to turn on or off the said electric light, and thereby killed plaintiff's intestate as averred. Demurrers were overruled to each count of the complaint as amended, and error is assigned as to each count.

Each count of the complaint stated a good cause of action, and sufficiently alleged that the death of plaintiff's intestate was wrongfully caused by the negligence of the defendant, and that it was the proximate result of allowing the wire in question to become too heavily charged with electricity, and so heavily charged as to kill intestate when he attempted to turn off or on the light furnished by the defendant. It is not necessary, in an action like this, to name any particular person, or servant, or agent, or officer of the municipal corporation as the one guilty of the negligence complained of. There was shown in the pleadings and the proof a sufficient reason for not making such officer or agent of the city a party to the action, as the Code directs, when such person is known and is jointly liable with the city.

The complaint, and each count thereof, sufficiently complied with sections 1191 and 1275 of the Code, as to the foundation of the claim before suit brought. Moreover, section 1191 of the Code was held by this court to be a mere statute of nonclaim, and it was further held that, if the action is brought within the time specified, this is a sufficient presentation and compliance with the statute; and the action in this case was brought within the time. Anderson v. Birmingham, 177 Ala. 302, 58 So. 256.

The complaint, however, does aver that the claim was presented and disallowed as to the whole or any part thereof. If the city thus denied liability for any amount, an itemized statement would and could...