Alabama Water Co. v. Wilson

• Decision Date: 01 April 1926
• Docket Number: 8 Div. 853
• Citation: 107 So. 821,214 Ala. 364
• Parties: ALABAMA WATER CO. v. WILSON.
• Court: Alabama Supreme Court

107 So. 821

214 Ala. 364

ALABAMA WATER CO. v. WILSON.

8 Div. 853

Supreme Court of Alabama

April 1, 1926

Appeal from Law and Equity Court, Franklin County; Travis Williams Special Judge.

Action by William E. Wilson against the Alabama Water Company. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under Code 1923, § 7326. Affirmed.

In action for failure to supply water, instructions for nominal recovery only, if plaintiff could have saved his meat held properly refused, as ignoring defendant's assurance that water would be turned on in time.

These charges were refused to defendant:

(1) I charge you, gentlemen of the jury, if the failure of defendant to furnish the plaintiff water was due to an accident, or because it became necessary to shut off the water to make alterations, repairs, or improvements, your verdict should be for the defendant.

(2) I charge you, gentlemen of the jury, that, if you find from the evidence that one of the rules and regulations approved by the Alabama Public Service Commission provides that the customers and patrons of the Alabama Water Company at Russellville, Ala., should claim no damages on account of the stoppage of water resulting from accident, or where necessary to make alterations, repairs, or improvements, and if you further find from the evidence that the flow of water to plaintiff's refrigerator was stopped on account of unavoidable accident, and for the purpose of making repairs, your verdict should be for the defendant.

(3) I charge you, gentlemen of the jury, that, if you believe from the evidence that the plaintiff knew that the water was cut off in time to save his meat by a nominal or small expense, your verdict should be for only a nominal sum.

(8) I charge you, gentlemen of the jury, that, if you find from the evidence that the temperature on the evening of January 26, 1925, the day plaintiff claims water was stopped from flowing to his refrigerator, was such that, by opening the doors of the refrigerator, plaintiff's meat would not have spoiled, then your verdict should be for the defendant.

(9) If you believe from the evidence that the plaintiff could have saved his meat by removing the door of his refrigerator open on the day the water stopped flowing, you will find for the defendant.

(10) I charge you, gentlemen of the jury, that in a case of damage of the kind claimed in this case it is always necessary to minimize the damages as much as possible, and if you find from the evidence that the plaintiff could have avoided his damages by providing a few blocks of ice at a small cost, your verdict, if you find anything for the plaintiff, could not be more than the reasonable cost of the ice.

Key & Key, of Russellville, for appellant.

J.F. Guin, of Russellville, for appellee.

SAYRE J.

Plaintiff kept a market for the sale of fresh meats and, to preserve his stock, had a refrigerating device to which a constant flow of water under pressure was necessary. Defendant, a public water supply company, had been furnishing the water. The complaint was, in short, that defendant upon a certain date wrongfully failed to furnish water, so that plaintiff's meats decayed and were lost to the extent, as the jury found, of $75.

The court correctly overruled those grounds of demurrer to the complaint which charged the complaint to be defective because it failed to allege that plaintiff's contract with the water company had been made in compliance with the rules and regulations made in the premises with the approval of the Alabama Public Service Commission. It is not to be assumed that the parties, entering into a contract for a water supply, violated any law, ordinance, rule, or regulation binding upon them in the premises. That would be defensive matter, if available in any event.

The sufficiency of the pleas stricken on plaintiff's motion should have been tested by demurrer (Powell v. Crawford, 18 So. 302, 110 Ala. 300); still the faulty procedure worked no injury to defendant, for the reason that the matters defendant therein sought to set up by way of defense, viz. that there was no contract and that the stoppage of water resulted from unavoidable accident, might have been shown under the general issue, and, in fact, defendant was allowed without restraint to introduce evidence to that effect, and the issue so raised was submitted to the jury for decision.

Plaintiff was allowed to show by the witness Osborne that the only purpose for which he used waters was to operate the refrigerating plant; this, in connection with proof that the plaintiff had purchased the business from the witness, and that witness had received the water under a written application stating the purpose for which it was to be used--that is, that it was to be used in his business--and that after the sale plaintiff continued to use and pay for the water in the business with the knowledge and assent of defendant's superintendent. We do not see that this testimony served any useful relevant purpose in the case but, on the other hand, it was so devoid of materiality, or probable or possible...