City of Bessemer v. Pope

• Decision Date: 16 October 1924
• Docket Number: 6 Div. 214.
• Citation: 212 Ala. 16,101 So. 648
• Parties: CITY OF BESSEMER v. POPE.
• Court: Alabama Supreme Court

101 So. 648

212 Ala. 16

CITY OF BESSEMER v. POPE.

6 Div. 214.

Supreme Court of Alabama

October 16, 1924

Appeal from Circuit Court, Jefferson County, Bessemer Division; J C. B. Gwin, Judge.

Action for damages by J. C. Pope against the City of Bessemer. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Reversed and remanded.

Bumgardner & Wilson, of Bessemer, for appellant.

Benton & Bentley, of Bessemer, for appellee.

MILLER J.

This is a suit for damages by J. C. Pope against the city of Bessemer for maintaining and operating a nuisance in the form of a trash or dump pile, where quantities of garbage trash, and débris were placed close to the residence of the plaintiff, and the offensive odors from it rendered "his home less pleasant and habitable," and the vile and offensive odors from it vexed and annoyed him and caused him mental pain and anguish. The trial resulted in a verdict by a jury in favor of the plaintiff, judgment thereon by the court, and this appeal is by the defendant from it.

There are four counts in the complaint, but only one, B. was submitted by the court to the jury. The demurrers of the defendant to it were overruled by the court. This count is framed, in part at least, like the count in the case of City of Birmingham v. Prickett, 207 Ala. 79, 92 So 7. The appellant insists it is demurrable because the property claimed to have been damaged is not sufficiently described. It describes it in one place as "the residence of plaintiff in a community in Jefferson county, Alabama, in or near the city of Bessemer," in or close to this place where the defendant dumped its garbage, trash, and débris during the month of June, 1922, or the first of July, 1922; and in another place it is described as "his residence, which was in Jefferson county, Ala., and at or near Circle Heights, near West Lake;" and there are other averments showing the residence was occupied by him and his family during that time. This description of the property is sufficient to show where the personal injury from the offensive odors, personal annoyance, and inconvenience were received, and where the property, his home, alleged to have been rendered thereby less habitable, was located, and the cause of the injury. This count also alleges:

"And plaintiff avers that a sworn statement of the injuries herein complained of, stating substantially the manner in which the injuries complained of were sustained, and the place where sustained, and the time when sustained, was filed with the clerk of the city of Bessemer, one of the defendants, more than ten days before the commencement of this action by the plaintiff."

These averments in the count show a sufficient compliance with section 1275 of the Code of 1907, so it is not subject to demurrer on that account. It alleges more than this statute requires. This count states a cause of action against the defendant and is not subject to the grounds of demurrer assigned to it. Murkerson v. Adler, 178 Ala. 622, 59 So. 505; Brannon v. City of Birmingham, 177 Ala. 419, 59 So. 63; City of Birmingham v. Prickett, 207 Ala. 79, 92 So. 7; Grambs v. City of Birmingham, 202 Ala. 490, 80 So. 874.

This suit was originally filed against the city of Bessemer and the Bessemer Coal, Iron & Land Company. The plaintiff by amendment had the Bessemer Coal, Iron & Land Company stricken as a defendant from the complaint. The defendant, city of Bessemer, by motion then asked the court to nonsuit the plaintiff to this action because it appears from the complaint the stricken defendant was equally liable with the city and should be sued jointly with it; which motion the court refused. If in this the court committed error, which we do not decide, it is without injury, for it appears from the evidence this alleged nuisance was maintained and operated alone by the city of Bessemer, and the Bessemer Coal, Iron & Land Company was neither a necessary nor proper party defendant. It was not made to appear to the court that it ought to be joined as a defendant with the city of Bessemer by the evidence in the cause. Sections 1273 and 1274, Code 1907; Milner v. City of Birmingham, 201 Ala. 689, 79 So. 261.

The defendant pleaded general issue with leave to give in evidence any defensive matter the same as if it had been specially pleaded. The jury was selected; the cause was stated to them by the attorneys for the parties; and then the following proceedings were had:

"Thereupon plaintiff made demand on the defendant to produce in court the petition that has been signed by the people in that community asking the city council to stop dumping trash over there near their doors, and which were signed by men, women, and children, and which is on file over in the city hall.

"Thereupon the defendant objected to said remark coupled with said demand, made in the presence of the jury, on the ground that it was a very unfair and unethical remark to be made in their presence, and could not be supported by the plaintiff in evidence, and asked the court to instruct the jury that they should not consider said remark.

"Thereupon the court stated that he would refuse to make any instructions to the jury in regard to said remark and demand, and overruled said motion made."

These remarks of counsel were highly improper, and should not be permitted on another trial of the case.

The sworn claim filed with the clerk of the city of Bessemer was objected to by defendant because it varied from the description of it in the complaint. The count avers it was filed with the clerk more than ten days before this suit was commenced, and it appears to have been filed with him on August 2, 1922, and the suit was commenced on August 12 1922. If this was a variance, it is an immaterial one, as the statute (section 1275) does not require that it be filed with the clerk of the city of Bessemer more than ten days before the suit is commenced. The sworn statement filed with the clerk claims damages for $2,000, the same amount claimed in the complaint. It claims damages suffered personally by plaintiff and by and to his property. His property is described in the sworn claim as his home, where he then resided, "Home Nos. 2 and 4, lots 22, 23, and 24, and street Circle Heights, at or near West Lake." The evidence shows his residence was located on lots 22 and 23 near Circle Heights. The complaint avers the property injured was his home, where he then resided "at or near Circle Heights near West Lake." The sworn statement sufficiently corresponded to the averments of the complaint as to the property claimed to have been damaged to render it admissible in evidence. Each showed the property claimed to have been injured was his home, then occupied by him at Circle Heights, near West Lake and near the place where garbage was dumped by the defendant. The sworn statement substantially corresponds with the complaint as to the manner in which the injury was received and the time and place thereof. It is true this statement avers it was drawn under sections 10 and 12 of an act of 1915 (Acts 1915, pp. 297, 298); yet the allegations therein conform substantially to the requirements of section 1275 of the Code 1907, which renders it admissible in evidence in this cause. Acts 1915, p. 294, and sections 10 and 12 thereof, on pages 297, 298, do not apply to the city of Bessemer as it has less than 100,000 inhabitants according to the last federal census. In ...