Town of Athens v. Miller , 190 Ala. 82 ( 1914 )

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 used it. There were, however, other lines or wires used by the defendant, which carried the very heavy and dangerous voltage of 2,400; hut 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 appeal; with certainty.

(1) 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.

(2) The complaint, and each count thereof, sufficiently complied with sections 1191 and 1275 of the Code, as to the propounding 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 South. 256.

(3, 4) The complaint, however, does aver that the claim ivas 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 be of no service.- The very nature of the claim in this case would prevent any itemization. The only liability claimed is the statutory one for wrongful death; the damages imposed therefor being in the nature of a penalty — “such damages as the jury may assess.” The law provides no mode, when the facts are know, of ascertaining the exact amount of damages, except by the verdict of the jury. The plaintiff could not, therefore, know the amount of damages to which she was entitled. While she would be required to present her claim for damages, there could be no itemized account, and she could not, from the nature of the claim and the provisions of the statute, know the exact amount to which she would be entitled. If, however, there could be any error as to rulings on pleadings or on the evidence, as to the presentation of the claim, it was cured by the following agreement of counsel: “It is admitted in this case that the statement required by section 1275 of the Code of Alabama of 1907, setting forth the facts required thereunder and propounding her claim, was duly and properly presented in accordance with said statute, and the town council of said town of Athens disallowed this claim and refused payment thereof, and that the same was filed within the time required by said section of the Code.”

(5, 6) There was no reversible error as to the court’s ordering an adjourned term, and continuing the same jury until they rendered a verdict,-on Sunday after the expiration of the regular term, but during the adjourned term. Section 3249 of the Code provides for the calling of such adjourned terms. The statute makes it discretionary with the trial court as to when he will call or order such a term, and whether it shall be a special term or an adjourned term, and whether the term called shall begin at once, on the expiration of the regular term, or at some named day in the future; and if an adjourned term is ordered, it -is a mere continuation of the regular term, no interregnum resulting, and the juries for the regular term may be continued in service for the adjourned part of the term, it not being necessary in such cases to order new venires for the adjourned part of the term. The course pursued by the trial court in this case is therefore approved.

It is true that the statute vests in the trial court a discretion as to whether he will continue the juries in service for the regular term, or whether he will order special venires. If the court should order a special term, and not an adjourned term, then, of course, there would have to be ordered special. venires as directed by the statute; but where he orders an adjourned term, which is a mere continuation of the regular term, then we see no reason why the court may not continue the venires then in service, for the adjourned part of the term. —Emrich v. Gilbert, 138 Ala. 316, 35 South. 322; Hundley v. Yonge, 69 Ala. 89. There is, of course, a marked distinction between an adjourned term, which is a mere continuation of the regular term, and a special term, which is not- such a continuation of a former term, hut which is a separate and distinct entity. The decision in the Pope Case, 165 Ala. 68, 51 South. 521, is not applicable here. The term there ordered was a special term, a separate entity, of necessity, because the statute fixing the regular term was held to be void, and there was therefore no regular term to be adjourned. It was not, as was the adjourned term in this case, a mere continuation of the regular term. Neither is Holland’s Case, 162 Ala. 5, 50 South. 215, here in point. ■

(7) So far as the jury’s remaining in session until the next week is concerned, there is no objection to this, provided the term has not expired. Section 7217 of the Code provides for cases where jurors are actually engaged in the trial of a case when the week for which they were summoned expires; it provides that they may serve into the next week and until that case is disposed of, or until they are discharged by the court.

(8) There is no valid objection to a jury returning a verdict on Sunday. This has been several times decided by this court. — Simmons v. State, 129 Ala. 41, 29 South. 929; Reid’s Case, 53 Ala. 402, 25 Am. Rep. 627; Dixon v. State, 76 Ala. 89. The particular Sunday must, however, be a part-of the term of the court at which the trial was had, otherwise the verdict would be void. If the judge in this case had called a special term, instead of an adjourned term, we are not prepared to say that the jury could have rendered a verdict after the term had expired. It is only where an adjourned term is called, which is in effect but extending the regular term, that the juries may render verdict after the expiration of the regular term. The term being extended by the order of the court before the verdict is rendered, and the verdict being rendered within the time to which the term is extended, it is, of course, rendered within the term.

(9) While charge 9 may assert a correct proposition of law, it is not error for the court to refuse it. It may he so worded as to be argumentative or misleading, as applied to the particular case on trial. The charge as applied to this case possesses misleading tendencies. It has a tendency to' impress the jurors that they should consider the evidence upon every point seriatim, and not consider it all together as a whole, and that the evidence to prove one point could not be considered, in finding the facts as to other points; that each point of the case should be found separately. For this reason, if for no other, the charge was properly refused.

(10, 11) This was a case in which the doctrine of res ipsa loquitur applied (Appleton's Case, 171 Ala. 324, 54 South. 638, Ann. Cas. 1913A, 1811) ; hence there was no error in allowing the plaintiff to propound hypothetical questions to' the expert witnesses. The main reason assigned and urged for error is that the questions assumed that there was a grounding in the primary line or system, and that there was no proof therefor. It is true that this was a disputed fact, and that there was no direct proof thereof; but there was other expert evidence — some introdued by the plaintiff, and some by the defendant — which, in conjunction wi Hi the doctrine of res ipsa loquitur, would authorize the jury to infer that there was such a grounding, otherwise the accident could not have happened. There was ample evidence to authorize the submission of the case to the jury, and also to support the verdict; hence, there was no error in refusing the affirmative charge requested by the defendant, nor in denying the motion for a new trial.

(12) When a municipality engages in the business of furnishing electricity, lights, water, etc., to the pub- • lie, it is not then discharging or exercising , governmental functions or powers, but is, quoad hoc, exercising proprietary or business powers, and as to- such business it is governed by the same rules of law which are applicable to ordinary business corporations engaged in like businesses. — Bessemer City v. Bessemer Waterworks Co., 152 Ala. 391, 44 South. 663; Darby v. Union Springs, 173 Ala. 709, 55 South. 889; Posey v. North Birmingham, 154 Ala. 511, 45 South. 663, 15 L. R. A. (N. S.) 711. The Municipal Code does not change this rulé of law as above declared.

We deem it unnecessary to- discuss the other errors assigned, as they are disposed of by what we have said above. We find no error in the record, and the judgment must be affirmed.

Affirmed.

Anderson, C. J., and McClellan and de Graffenried, JJ., concur.