Wheeler v. River Falls Power Co.

• Decision Date: 18 November 1926
• Docket Number: 4 Div. 243
• Citation: 215 Ala. 655,111 So. 907
• Parties: WHEELER v. RIVER FALLS POWER CO.
• Court: Alabama Supreme Court

111 So. 907

215 Ala. 655

WHEELER v. RIVER FALLS POWER CO.

4 Div. 243

Supreme Court of Alabama

November 18, 1926

Rehearing Denied Jan. 13, 1927

Further Rehearing Denied April 14, 1927

Appeal from Circuit Court, Covington County; W.L. Parks, Judge.

Action by Velma Wheeler against the River Falls Power Company. From a judgment for defendant, plaintiff appeals. Affirmed.

D.M Powell, of Greenville, and W.H. Albritton, of Andalusia, for appellant.

Powell & Reid, E.O. Baldwin, and J. Morgan Prestwood, all of Andalusia, for appellee.

SAYRE J.

The purpose of the first four counts of appellant's complaint was to state a cause of action as for a nuisance for that appellee, defendant, erected a dam across Conecuh river thereby impounding the waters of the river, and causing plaintiff to become sick, and to suffer physical pain and mental anguish. There is in these counts no allegation that the dam was unlawfully or wrongfully erected, and for that reason, according to cases of recent decision in this court the demurrer to these counts was properly sustained. Hamilton v. Alabama Power Co., 195 Ala. 438, 70 So. 737; Burnett v. Alabama Power Co., 199 Ala. 337, 74 So. 459; Meharg v. Alabama Power Co., 201 Ala. 555, 78 So. 909. In view of appellant's reference to section 9271 of the Code of 1923 as settling a different doctrine, we observe that section 5193 of the Code of 1907, brought forward into the Code of 1923 as section 9271, antedated the decisions we have cited above, and we must assume, therefore, that it had consideration when those decisions were rendered, and, with that consideration, was brought forward into the present Code. So, likewise, the case of Town of Vernon v. Wedgeworth, 148 Ala. 490, 42 So. 749, antedates the cited cases, and the court, if there is any conflict--and we doubt that any was intended--prefers now to follow its more recent adjudications.

Added counts 5, 6, 7, and 8 charge that defendant wrongfully and negligently erected the dam with the consequences aforestated. Counts 7 and 8 more specifically charge that defendant negligently impounded the waters of the said river in violation of the regulations of the state board of health, in that it negligently failed to remove, burn, or otherwise satisfactorily dispose of "brush, trees, undergrowth, logs, stumps, and similar objects which, if not removed, would float or collect floatage on the surface of the impounded waters, and which would constitute conditions favorable to the protection of the larvae of mosquitoes capable of conveying malaria," etc., whereby plaintiff became sick, etc. The cases cited above were decided prior to the adoption of the regulations referred to, and prior to the wrong and injury complained of, but the principles of substantive law and pleading therein stated and approved by a majority of the court lead us to conclude that the added counts sufficiently stated a cause of action.

Defendant corporation was organized under the law of this state, and enjoyed the powers conferred by statute, now expressed by section 7193 of the Code of 1923, among others, the right to construct and operate a dam across any nonnavigable stream such as Conecuh river is at the dam site in question, "together with all works incident, necessary, or related thereto, and in connection therewith to impound or divert the water" of that stream, and upon this seems to be based the contention that defendant might proceed without reference to the regulations adopted with respect to such enterprises by the state board of health. On December 1, 1922, the committee of public health, purporting to act for the state board of health, or rather, as will appear, certain members of the committee, undertook to adopt rules and regulations to govern the impounding of waters in this state, a copy of which was furnished to defendant on April 24, 1923. Such rules and regulations, when adopted according to the method provided by statute, "have the force and effect of law, and shall be executed and enforced by the same courts, bodies, officials, agents and employees as in the case of health laws." Code 1923, § 1051, subsec. 6. "Any person who violates any of the health or quarantine laws, except those for which a special penalty is prescribed, shall be guilty of a misdemeanor," etc. Code § 4360. Legislative competency to enact laws of this character, i.e., laws "authorizing their own appointed agencies to make such minor rules and regulations as are necessary or appropriate for the administration and enforcement of the general laws of the state," has been approved and upheld by this court. Parke v. Bradley, 204 Ala. 455, 86 So. 28. Defendant had begun the work of clearing the ground (after a fashion) and the construction of its dam prior to the date of these rules and regulations, but the waters of the river had not been impounded. That was done afterwards. To the impounding of the waters, therefore, as alleged in the complaint, the rules and regulations adopted by the board of health, if adopted with due warrant of law, applied with full force.

But defendant contends that the rules and regulations in question were not adopted by the state board of health according to law, but were nothing more than an expression emanating from individual members of the board less in number than a quorum, and have not the force and effect of law, and, as we read the record, the trial court adopted that view, and excluded the evidence of the rules and regulations; thus leaving plaintiff without evidence of a fact essential to her case, and raising the most vital question presented for decision on this appeal.

Our judgment is that the ruling here in question was free from error. Dr. Welch, who as state health officer certified the transcript of the record of the state board of health, testifying as a witness for plaintiff, stated that the rules and regulations governing the impounding of waters in this state were adopted by a quorum of the board, but this, evidently, was the conclusion of the witness from facts in evidence, and not the subject of dispute, whereas the question of law presented was one to be decided by the court. The answer was properly excluded.

The transcript of the record of the state board of health, put in evidence, disclosed the fact that there were present at the called meeting which undertook to adopt the rules and regulations in dispute three members of the state committee of public health, the state health officer included, and in addition the Governor, ex officio a member of the committee and ex officio its chairman. Code § 1047. But the state board of censors of the medical association of the state, which, when acting in its appropriate capacity, is the state committee of public health, is composed of ten members elected by the association, and the absentees, who had been informed of...