Opinion
4 Div. 918.
October 26, 1922.
Appeal from Circuit Court, Dale County; J. S. Williams, Judge.
John R. Tyson and Arrington Arrington, all of Montgomery, for appellant.
The summons was fatally defective, and motion to quash it should have been sustained. Code 1907, § 5299. The averment that proof of claim was filed with the city clerk was material to all the defendants, and, on failure to prove such averment, there could be no recovery. 177 Ala. 441, 59 So. 155; 177 Ala. 419, 59 So. 63; 195 Ala. 202, 70 So. 642; 177 Ala. 302. 58 So. 256; 51 Ala. 156. It was error to give the affirmative charge for defendant B. C. Dowling. 104 Ala. 611, 16 So. 620; 112 Ala. 588, 21 So. 352. Counsel argue other questions, but without citation of authorities.
J. J. Speight and Lee Tompkins, all of Dothan, for appellee.
The summons was sufficient. 23 Ala. 684; 45 Ala. 286; 66 Ala. 472; 100 Ala. 545, 13 So. 665. Appellant cannot complain of the failure of appellee to file proof of claim with defendant city of Ozark. 51 Ala. 498; 93 Ala. 350, 9 So. 870; 94 Ala. 159, 10 So. 137; 120 Ala. 653, 25 So. 22; 178 Ala. 636, 59 So. 461.
The summons as served upon this appellant does not entirely conform to the form prescribed by section 5299 of the Code of 1907, as it does not direct the defendant "to appear at the next term of the circuit court, to be held for said county at the place of holding same." It does, however, direct the defendant to appear and answer the cause there described, and shows that it was pending in the Dale circuit court, and the failure to fix the time for appearance and answer did not render the summons subject to the appellant's motion to quash the same, as the law fixes the time within which the defendant must appear. Davis v. McCary and Dean, 100 Ala. 545, 13 So. 665.
Count 1 of the complaint, while quite verbose and prolix, was not subject to any of the grounds of demurrer interposed thereto and argued in brief of counsel. It, in effect, charges this appellant's agents or servants with a knowledge of the location and condition of the guy wire and of the danger of a probable contact with appellant's lighting wire and of the consequences that might probably arise therefrom. It also charges this appellant's agents or servants with a knowledge of the location of its lighting wire and of its uninsulated condition or of a negligent failure to discover this fact which existed for several months; the wire being within close reach and of easy observation. Jones v. Finch, 128 Ala. 217, 29 So. 182; McKay and Roache v. Sou. Bell Tel. Co., 111 Ala. 337, 19 So. 695, 31 L.R.A. 589, 56 Am. St. Rep. 59; Montgomery Light Co. v. Thombs, 204 Ala. 678, 87 So. 205. The fact that the complaint was prolix may have rendered it subject to a motion to strike, but not to a demurrer. Section 5322 of the Code of 1907.
It is needless to determine whether or not pleas 7 and 8 were subject to the demurrer sustained to same for whether good pleas or not, a question we do not decide or intimate, the defendant got the full benefit of the defense thereby invoked by the pleas to which the demurrer was overruled. Special pleas 3 and 4 gave the defendant the full benefit of the defense sought by plea 7, and required less proof to establish same. And the same can be said as to plea 8, being covered by plea 5. We do not wish to be understood as holding that the pleas to which the demurrer was overruled are good pleas.
The trial court cannot be reversed for not sustaining appellant's objection to the question to the witness Dowling as to whether or not he acted for the city of Ozark or whether he acted on his private initiative, or in not excluding the answer, that, "The work was done for the accommodation of the railroad." The question was permissible under the authority of Emerson v. Lowe Mfg. Co., 159 Ala. 350, 49 So. 69. Moreover, the answer that the work was done for the accommodation of the railroad was not a forbidden conclusion or opinion, but was the statement of a collective fact, the details of which could have been brought out upon cross-examination.
The question to the witness as to its being a permissible custom during his administration as superintendent to use the city's poles to string their wires, whether objectionable or not, was subsequently answered in the affirmative by said witness, and the appellant got the full benefit of the evidence thereby sought.
The trial court committed no reversible error in not permitting the appellant to ask witness Cox:
"In order to pass that hole of water on the west side, was it necessary for pedestrians to do any thing to that pole or that wire in order to pass in safety?"
It invaded the province of the jury as the witness had fully stated the conditions and surroundings, and how the deceased and his companions were traversing the street at the time, and it was for the jury to determine whether or not the deceased could have passed in safety without doing anything to the pole or wire.
It is true that the complaint avers a compliance with sections 1191 and 1275 of the Code as to the presentation and filing of the claim and the proof of which is a condition precedent to a recovery against the city. Benton v. City of Montgomery, 200 Ala. 97, 75 So. 473. These statutes, however, are for the sole benefit and protection of municipalities, and the averment of a compliance therewith was only essential and material in order to recover against the city of Ozark, and was not necessary as to this appellant railroad, which is sued as a joint tort-feasor, and which could have been sued without making the city a party.
It is next insisted that this appellant was entitled to the general charge because the proof failed to show that any agent, charged with the duty of maintaining the electric lighting wires, knew of their uninsulated condition, or that they knew of the physical contact between these wires and the guy wire. There was proof that the appellant's lighting wire had become worn and uninsulated for several weeks before the accident, and that appellant's agent Mosely, who had charge and control of its premises, could and did at a close point observe the wire, and the jury could infer that he did or should have discovered the condition, and that he knew of the unstable condition and position of the guy wire and the loose post to which it was attached, and made no effort to have the lighting wire reinsulated or the guy wire refastened to the ground so as to prevent a contact between it and the appellant's lighting wire. Not only could the jury infer the authority of Mosely from his general charge and control of the premises to keep them safe, but there was evidence that he had the lighting wire installed, and there was a reasonable inference that his act was either authorized or subsequently ratified by the appellant in paying for and using the same.
The appellant next insists that it was entitled to the general charge because of the undisputed proof of its special pleas, or some of them. We think that it was a question for the jury as to whether or not these pleas or any one of them were proven. It was a question for the jury as to whether or not deceased could have safely traversed the street at the time he came in contact with the post without shoving or removing same. Moreover, each of the pleas avers, in effect, that he voluntarily took hold of the wire, and some of the proof shows that he did not take hold of the wire, but merely grabbed or shoved the post, and may have accidentally touched or come in contact with the wire.
Whether the trial court erroneously or not gave the general charge in favor of B. C. Dowling, one of the defendants, is a point as to which this appellant cannot complain, as it could have been sued jointly or separately, and could be made liable for the entire judgment. Acts 1915, page 605. The cases of Mayer v. Thompson, 104 Ala. 611, 16 So. 620, 28 L.R.A. 433, 53 Am. St. Rep. 88, and Luling v. Sheppard, 112 Ala. 588, 21 So. 352, cited in brief of counsel, merely hold that an agent who commits a tort for his principal cannot escape personal liability because acting for another who would be liable for his acts. They do not hold that the plaintiff could not recover against this appellant notwithstanding his failure to recover, through error or otherwise, against Dowling.
The two exceptions to the oral charge are not of such merit as to operate as a reversal of this case. True, the city owned and maintained the guy wire and post, but it was for the purpose of bracing or protecting another post upon which appellant's wire was strung and was maintained for the joint benefit and protection of the wires of both, and while it may have been primarily the city's duty to keep and maintain the guy wire in a safe condition, the appellant was also a joint user and beneficiary in same, and was also obligated to exercise reasonable, or perhaps a high degree of care — electricity being a highly dangerous substance — to maintain its wires and supports for the conservation of human life and safety.
The judgment of the circuit court is affirmed.
Affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.