Opinion
7 Div. 195.
October 20, 1921.
Appeal from Circuit Court, Shelby County; A. B. Foster, Judge.
Perry W. Turner, of Birmingham, for appellant.
The demurrers to count A were good. 196 Ala. 612, 72 So. 164; 190 Ala. 70, 66 So. 691; 14 Cal.App. 651, 114 P. 54, 74. Plaintiff failed to meet the burden of proof. 190 Ala. 70, 66 So. 691; 197 Ala. 473, 73 So. 33; 192 Ala. 486, 68 So. 815; 131 Ala. 419, 30 So. 774; 14 Cal.App. 651, 114 P. 74. Charges 9, 10, and 12 should have been given. 137 Ala. 601, 34 So. 1020, 97 Am. St. Rep. 62, and authorities supra.
Riddle Riddle, of Talladega, for appellees.
Count A was sufficient. 203 Ala. 77, 82 So. 91. The evidence afforded reasonable inference that the accident arose through negligence. 7 Words and Phrases, First Series, 6137; (Tex.Civ.App.) 63 S.W. 164. Counsel discuss further assignments of error, but without further citation of authority.
This cause has been considered on a former occasion, Davidson v. Ala. Power Co., 203 Ala. 77, 82 So. 91. It was then decided that count A was not subject to the demurrer, but the judgment was reversed for another reason. It is again insisted that count A is subject to the demurrer, but, since no ruling in the court below on this matter was invoked after the former adjudication in this court, the question is not open to review on subsequent appeal. Ala. City Ry. Co. v. Bates, 155 Ala. 347, 46 So. 776; McGreever v. Terre Haute Co., 201 Ala. 290, 291, 78 So. 66.
However, it may be observed that this court remains convinced of the correctness of its previous decision on the sufficiency of count A. It is a misapprehension on appellant's part to interpret the count as specifying the particular acts of culpable negligence to which the plaintiffs ascribe their damage. The count is a permissible general count, charging negligence in respect of a dangerous element, electricity; and the allusion in the count to the proximity of the defendant's transmission wires to the defendant's telephone wire that entered plaintiffs' telephone exchange did not render the effect of the count restrictive of its permissible general allegations of negligence.
On former appeal it was decided that the material issues tendered by count A were due submission to the jury; that the defendant (appellant) was not entitled to the general affirmative charge in its favor. Reconsideration does not convince that the previous ruling in that particular was erroneous. Besides, the applicable doctrine of res ipsa loquitur contributes to confirm the correctness of the previous ruling on this point. Bloom v. City of Cullman, 197 Ala. 490, 496, 497, 73 So. 85, citing supporting principle and illustrating its application.
The only negligence relied on for recovery in Western Union Tel. Co. v. Jones, 190 Ala. 70, 72, 66 So. 691 — a decision in which the ownership of different wires related to or causing the injury was referable to distinct concerns — was the proximity of wires, innocent in themselves, to highly charged transmission wires. As stated, the present count A is not so restricted in its averment of the negligence charged.
Benziger and Crabtree were in the employ of appellant. The telephone wire to which plaintiffs attribute the burning of the building and contents belonged to the appellant and was connected with plaintiffs' exchange (switchboard) by the appellant. It ran from appellant's power plant, generating electricity, to the exchange switchboard, and to separate camps of appellant's employees, the transmission line and the telephone line being parallel on appellant's right of way. The plaintiffs' theory was that, on the night of the fire, a very high and dangerous electric current was put on the transmission line at the power plant, and that in some way it passed to the telephone wire entering plaintiffs' exchange and ignited the switchboard and building. The appellant's telephone was connected with the exchange switchboard by verbal contract between the parties, with arrangement for the payment of toll by appellant to plaintiffs based upon use by its employees of the appellant's telephone line through the exchange. Such tolls were charged to, and paid by, the appellant. In this connection plaintiffs were permitted, over appellant's objections, to show that employees or representatives of the appellant talked to each other over the appellant's private telephone line on the night of and before the fire, conversing about a "test" with higher current that would be put on the transmission lines that night. There was no error in admitting such evidence. It did not offend the familiar rule forbidding proof of agency by mere declarations of the asserted agent.
That evidence was referable to acts related to the res gestæ of the event under inquiry. However, where there is other evidence of agency, pertinent declarations of the asserted agent are admissible. Robinson v. Greene, 148 Ala. 434, 440, 43 So. 797, and subsequent decisions in that line.
What has been already said with reference to appellant's contention that count A was subject to demurrer and that appellant was due the general affirmative charge, disposes, unfavorably to appellant, of the matters (excerpts from the oral charge) referred to in assignments 7 and 8.
The court refused appellant's requests for instructions numbered 9, 10, and 12. They appear in the report of the appeal. The court did not err in refusing these instructions. A material factor in their hypotheses is that the appellant observed, in arranging its lines or operating them, a course like that followed by the best regulated concerns of appellant's character; and from such a premise, in part at least, invoked the conclusion of nonliability in this instance. The use or employment of the methods, appliances, or arrangements used by the best regulated concerns of defendant's character is not conclusive that negligence did not intervene as the proximate cause of an injury or damage. Caldwell F. M. Co. v. Watson, 183 Ala. 326, 334, 62 So. 859; Central R. R. Co. v. Robertson, 203 Ala. 358, 83 So. 102, 105. This fault, if not others unnecessary now to note, in the requested instructions justified their refusal.
Whether the action was commenced within the period allowed was, under the evidence, a jury question, the proof not being undisputed that 12 months had elapsed between the burning of the property and the commencement of the suit.
The judgment is not affected with error. It is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.