Tennessee Coal, Iron & R. Co. v. Hartline

Decision Date28 January 1943
Docket Number6 Div. 57.
Citation244 Ala. 116,11 So.2d 833
CourtAlabama Supreme Court
PartiesTENNESSEE COAL, IRON & R. CO. v. HARTLINE.

Rehearing Denied Feb. 25, 1943. [Copyrighted Material Omitted]

Benners, Burr, McKamy & Forman, of Birmingham for appellant.

Harsh, Harsh & Hare and Henry L. Jennings, all of Birmingham, for appellee.

THOMAS Justice.

The complaint was against the Tennessee Coal, Iron & Railroad Company, a corporation, Birmingham Slag Company, a corporation, Dixie Carbide Company, H.S. Teal, Frank Gurley alias Robert Gurley, Roy Jackson, alias Leroy Jackson, and John Doe Company. The plaintiff dismissed his case against all of the defendants except the Tennessee, Coal Iron & Railroad Company, hereinafter called the T.C.I., and the Birmingham Slag Company. The jury found for the Birmingham Slag Company and against the appellant.

The trial was upon Count B; the demurrer thereto was overruled and defendants pleaded in short by consent. The appellant T.C.I. assigns as error the overruling of its demurrer; the refusal to give the general affirmative charge; the admission in evidence of certain testimony over its objection, and the overruling of its motion for a new trial.

Appellee insists that the minute entry shows a general ruling upon all of the demurrers filed by the several defendants and hence it is insufficient to present for review the error complained of in the overruling of demurrer to Count B filed thereto and here assigned by the T.C.I. as error. [The reporter will set out the pertinent recitals of the judgment entry on the demurrers.] This specific recital shows that the ruling on demurrer was not within the pronouncements contained in Central of Georgia Railway Co. v. Ashley, 159 Ala. 145, 48 So. 981; Alabama Chemical Co. v. Niles, 156 Ala. 298, 47 So. 239. We hold the record shows a specific ruling on that demurrer to Count B by the T.C.I., and that the ruling here assigned as error is subject to review by this court. Liverpool & London & Globe Ins. Co. v. McCree, 210 Ala. 559, 98 So. 880; Alabama Power Co. v. Fergusen, 205 Ala. 204, 87 So. 796.

Thus we are brought to a consideration of the overruling of demurrer of the T.C.I. to Count B added by amendment and on which the trial was had. That count is an adoption of parts of count 1 and count A as added thereto and adopted in Count B.

Several grounds of demurrer that were overruled are: the complaint does not allege that the injury occurred as the result of the act of the defendants; that for aught appearing in the pleading, it is averred trespassers caused plaintiff's injury; that the defendants in charge or control of the premises knew, or by the exercise of reasonable diligence should have known, that said nuisance was being maintained upon said premises and that persons not upon said premises would likely or probably be injured thereby, is a conclusion of the pleader and does not sufficiently set forth the facts upon which such conclusion is rested; that for several months prior to the occasion of plaintiff's injury, blasting operations were conducted upon the premises, does not sufficiently aver that such operations were so conducted as to constitute a nuisance.

Further grounds of demurrer overruled are: It is not averred the defendants had notice that said alleged blasting operations were being conducted on the property, for that the averment that by the exercise of reasonable diligence defendants should have known that said blasting operations were being conducted on the premises, is not the equivalent of knowledge to the defendants; and for that it is averred that the blasting operations were conducted upon the premises by alleged unknown persons, does not state that such blasting operations constituted a nuisance that was known to defendants or that they created the same. Such, in effect, are the grounds of demurrer of the T.C.I., the overruling of which is assigned as reversible error.

The question for decision is, may the owner of the land, under the rule of imputed or constructive notice (in the absence of statute), be made liable for damages caused by a nuisance on his land, which he did not create or authorize to be continued thereon? Mobile & Montgomery Ry. Co. v. Felrath, 67 Ala. 189; Code 1940, T. 7, § 1081 et seq.

The count was as to all defendants indicated and no where distinguished between the owner, tenant or subtenants or licensee. It alleges that plaintiff's injury was "by reason of and as a proximate consequence of blasting operations then and there being carried on upon premises in charge or control of defendants at or near to-wit, Powell Avenue, between 9th and 10th Streets, in said City, * * *." The fair inference is that though the count does not charge in words that the facts averred constituted a nuisance, the natural implication of pleading that may here be indulged is that the facts as averred had the effect of declaring for a nuisance that resulted in injury to a pedestrian upon the public streets of the City of Birmingham. Adler & Co. v. Pruitt, 169 Ala. 213, 53 So. 315, 32 L.R.A., N.S., 889. The court so interpreted the count and charged the jury to that effect. Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann.Cas.1917D. 929; City of Birmingham v. Whitfield, 29 Ala.App. 454, 197 So. 666.

It may be that we should seek for analogy in the duty imposed on the owner of real property in other circumstances, for example, in an attractive nuisance case. In Gandy v. Copeland, 204 Ala. 366, 86 So. 3, it is held:

"One may permit his land to be so used by others that they may reasonably presume that he will give notice of a change in conditions rendering such use unsafe, and if he places dangerous structures thereon which may be reasonably apprehended to be dangerous to those so using the land he is not exonerated from liability for their injuries by reason of fact that they were on land on other business than with owner or occupier.

"A mere trespasser upon the premises of another can claim from the owner no further duty than that traps or pitfalls may not be set or permitted in his way."

In Preston v. LaSalle Apts., 241 Ala. 540, 3 So.2d 411, it is said that the general duty imposed by law on the owner of premises is one must be reasonably sure that he is not inviting another into danger and that one must exercise ordinary care and prudence to render and to keep his premises in a reasonably safe condition for invitees. Prudential Ins. Co. v. Zeidler et al., 233 Ala. 328, 171 So. 634. This count does not declare for an invitee or for one injured by an attractive nuisance.

The rule for the abatement of a public nuisance is stated for the court by Mr. Justice Knight in State ex rel Bailes, Solicitor, v. Guardian Realty Co. et al., 237 Ala. 201, 205, 186 So. 168, 171, 121 A.L.R. 634, as follows:

"At common law the owner of premises was under the duty, and upon him rested a primary obligation, to keep his premises from becoming a public nuisance. Joyce on Nuisances, § 453. * * *

"This duty and obligation on the part of the owner spring from the maxim, 'So use your property as not to injure the rights of another.' "

To the same effect are the cases of Martin v. Blattner, 68 Iowa 286, 25 N.W. 131, 27 N.W. 244; City of New York v. McDevitt, 215 N.Y. 160, 109 N.E. 88, Ann.Cas.1917A, 455.

What, then, is the rule for a nuisance created by blasting on premises of the owner? The rule given statement in 46 Corpus Juris, p. 693, § 105, is: "The blasting of rock on private premises does not of itself constitute a nuisance, but whether it is a nuisance or not is a question of fact depending upon the attending and surrounding circumstances. Blasting, without reference to the particular locality in which it is carried on, is not so intrinsically dangerous as to be ipso facto a nuisance. But the blasting of rocks may constitute a nuisance, as where it is injurious to neighboring property owners; * * *." See, also, Birmingham Realty Co. v. Thomason, 8 Ala.App. 535, 63 So. 65; Ex parte Birmingham Realty Co., 183 Ala. 444, 63 So. 67.

The same authority [46 C.J., p. 742, § 324] contains the text as to "notice" as follows: "It is a prerequisite to impose liability against a person who merely passively continues a nuisance created by another that he should have notice of the fact that he is maintaining a nuisance and be requested to remove or abate it, or at least that he should have knowledge of the existence of the nuisance. * * *."-- [Italics supplied].

Such is the rule in this jurisdiction. Crommelin v. Coxe, 30 Ala. 318, 328, 68 Am.Dec. 120; Sloss-Sheffield Steel & Iron Co. v. Nance, 216 Ala. 237, 113 So. 50; Lamb v. Roberts, 196 Ala. 679, 680, 72 So. 309, L.R.A.1916F, 1018.

In Tedescki v. Berger, 150 Ala. 649, 43 So. 960, 11 L.R.A., N.S., 1060, under a bill by authority of the state for injunction to abate a nuisance, it is held that "A bawdy house is a public nuisance, which one whose home is adjoining is entitled to abate by injunction." It is also held in this case: "A landlord cannot be made liable for the use of the premises in such a way by the tenant as to render the business there conducted a nuisance, where the premises were rented for a business which may be conducted in such a way as not to constitute a nuisance; but if he rents the building for the express purpose of having carried on therein a business which is per se a nuisance, he is liable."

There are many decisions in other jurisdictions to the effect that the bare fact of ownership of real property imposes no responsibility for a nuisance created and maintained thereon by other parties.

In Lamb v. Roberts, supra, 196 Ala. 679, 72 So. 309 310, L.R.A.1916F, 1018, it is said: " * * * In the case of Crommelin v. Coxe, 30...

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