Darby v. City of Union Springs , 173 Ala. 709 ( 1911 )

MAYFIELD, J.

This action is brought, under the homicide statute, against the appellee, a municipal corporation.

The deceased was plaintiff’s minor child, nine years of age.

The complaint was evidently modeled after forms often approved by this court a§ sufficient in all respects, except as to certain alleged defects pointed out by the demurrer, to be hereafter noticed specifically.

The complaint in short, among other things, alleged that the defendant municipal corporation, on and before the date of the alleged wrongful death of plaintiff’s intestate, “owned and was engaged in operating an electric light plant, and lines of electric wires,” and that it also attached an uninsulated guy wire to its electric poles used in this business, so as to be dangerous to the public, and allowed the same to remain in this dangerous condition; and that plaintiff’s intestate,’ a boy nine years of age, came in contact with said wire, which, owing to the defendant’s negligence, had become heavily charged with electricity, and was thereby wrongfully killed.

The city demurred to the complaint on the grounds: First, because the court judicially knows that the defendant hail no legislative authority for operating an electric light plant and lines of electric light wires; second, because the defendant’s charter did not authorize it to so operate such plant and wires; third, because-the court judicially knows that there is no statute making it the duty of said municipality to keep such wires: in good condition. There were various other grounds alleged; but they need not be considered, as they were without merit, or were overruled by the trial court.

Prom the judgment sustaining the demurrer (or demurrers, as they seem to have been treated), the plaintiff, under the statute for such cases provided, took a nonsuit with a hill of exceptions, in order to review such adverse rulings of the trial court. In this ruling upon the demurrer we are of the opinion that the trial court was in error. The ruling of the trial court was probably based upon a former decision of this court, in the case of Posey v. North Birmingham, 154 Ala. 511, 45 South. 663, 15 L. R. A. (N. S.) 711. However, that case is clearly distinguishable from this. While they are identical in many — nearly all — respects, they are different in one; and it was with sole reference to this one that the decision in that case was based. That decision concludes as follows: “Our conclusion is that the defendant municipality had not the power under the general statute, which contained all of its charter powers, to engage in the operation of an electric lighting plant. It follows that the act complained of was ultra vires the corporation, and the resulting injury fixed upon it no liability.”

In this case we do not judicially know that defendant corporation was incorporated under the general statutes, or that such statute contained all its charter powers, and therefore conclude that it had no power to engage in the operation of an electric plant.

On the other hand, we take judicial notice of such public acts, though local as to territory, such acts creating municipal corporations or amending their charters, and we know that the defendant corporation’s charter was created under several local acts of the Legislature, which impliedly, if not expressly, authorized it to own and operate electric light plants.

The charter powers of the defendant, prior to the new Municipal Code, are to be found in the various local acts of the Legislature passed since the 1st day of March, 1870, at which time a new charter was established by such act (Acts 1869-70, p. 276 et seq.), which act or charter has been many times amended by other local acts. Save the local acts of 1892-93 (page 231) and 1894-95 (page 938), all these amendatory acts are unnecessary to be here mentioned. But these specified acts authorize the city to erect and maintain an electric light plant. This, we think, implies the authority to own and operate such plant, in such manner as to render it liable for the negligence of its servants or agents when engaged in the line and scope of their authority, as is alleged in this complaint. In fact, this much was expressly decided in Posey’s Gase, supra, in which the court, speaking through Dowdeud, J. (now Chief Justice), said: “It seems to be settled as authority, where a municipal corporation, acting within its charter powers, maintains and operates an electric lighting plant, the corporation may be held for the negligence of its servants or agents as any other person.— Fisher v. Newbern, 140 N. C. 506, 53 S. E. 342, 5 L. R. A. (N. S.) 541, 111 Am. St. Rep. 857; Owensboro v. Knox, 116 Ky. 451, 76 S. W. 191; Emory v. Philadelphia, 208 Pa. 492, 57 Atl. 977; Herron v. Pittsburg, 204 Pa. 509, 54 Atl. 311, 93 Am. St. Rep. 798; Twist v. Rochester, 165 N. Y. 619, 59 N. E. 1131; Emporian v. Burns, 67 Kan. 523, 73 Pa. 94. See, also, note to Herbert v. Lake Charles Ice Co., 100 Am. St. Rep. 535.”

It follows, therefore, that the court erred in sustaining the demurrer to the complaint.

The writer, however, does not desire to commit himself to the conclusions reached in the Posey Case, supra, upon which that case was affirmed, thus sustaining demurrers to a complaint like the complaint in this case, save as to the authority or power of the two corporations. While, as before stated, it is not in conflict with the decision in this case, hnt is authority for it, yet, as it was relied upon by the trial court, and is cited and twice quoted in this case, the writer does not desire to be understood as agreeing to the conclusion in that case in so far as it held that the town of North Birmingham, organized as it wras, under the general laws of the state, had no authority to own or operate an electric light plant. He thinks that municipal corporations have the inherent power to light their streets and public buildings. This power is essential to their declared objects and purposes; and, having this power and authority, it is a matter of discretion and expediency as to how they will light them — whether by pine knots, candles, lamps, natural or artificial gas, gasoline, acetylene, or electricity.

Reversed and remanded.

All the Justices concur in the conclusion.