Alabama Water Service Co. v. Johnson, 6 Div. 944.

• Decision Date: 05 November 1931
• Docket Number: 6 Div. 944.
• Parties: ALABAMA WATER SERVICE CO. v. JOHNSON.
• Court: Alabama Supreme Court

137 So. 439

223 Ala. 529

ALABAMA WATER SERVICE CO. v. JOHNSON.

6 Div. 944.

Supreme Court of Alabama

November 5, 1931

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Action for damages by T. L. Johnson against the Alabama Water Service Company, for wrongful cutting off of water supply. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals.

Affirmed.

Cabaniss & Johnston, of Birmingham, and Huey, Welch & Stone, of Bessemer, for appellant.

E. E Wilson and Mathews & Mathews, all of Bessemer, for appellee.

THOMAS J.

The several assignments of error challenge the action of the trial court refusing requested written instructions to the jury and overruling motion for a new trial.

The suit was for damages resulting from the discontinuance of water service from plaintiff's home for the period indicated. The duty in that behalf by such public service corporations is well understood and given expression in the general line of authorities in this jurisdiction. Birmingham, R., L. & P. Co. v. Littleton, 201 Ala 141, 77 So. 565; Wiegand v. Alabama Power Co., 220 Ala. 620, 127 So. 206; Alabama Water Co. v. Knowles, 220 Ala. 61, 124 So. 96; Bessemer Water Works Co. v. City of Bessemer, 198 Ala. 535, 73 So. 905.

The respective theories of the parties on which the case was tried, were that of the breach of duty or willful conduct in cutting off the water, the unavoidable water conditions causing air pockets in the main which obstructed the pressure and flow to the plaintiff's residence and which were immediately remedied after notice, and the fact that if the water was cut off, it was temporarily done under the rules of the company and those of the contract, for the purpose of the required repairs.

The evidence was sufficient to submit to the jury the questions of willful conduct and pecuniary loss or inconvenience and annoyance as recoverable elements of damages. In Alabama Water Co. v. Knowles, 220 Ala. 61, 124 So. 96, it was declared that inconvenience and annoyances from wrongful failure to furnish water to customers, are recoverable elements of damages, and evidence of the distance and condition of the way to the spring where plaintiff was forced to get water during the interim was properly received; and the loss of time and labor in this behalf was sufficient to base a claim for damages upon, and other losses as the consequence of being deprived of the water itself, for which payment had been duly made as per contract and rules. Birmingham Water Works Co. v. Ferguson, 164 Ala 494, 51 So. 150; Birmingham Water Works Co. v Watley, 192 Ala. 520, 68 So. 330.

Error cannot be predicated upon the refusal of charges which should have been given, and yet were covered by the oral and given charges. Eggleston v. Wilson, 211 Ala. 140, 100 So. 89; Alabama Great Southern R. Co. v. Ensley Transfer & Supply Co., 211 Ala. 298, 100 So. 342.

The law of the case under the evidence, and the divergent theories of the parties under the pleading in short by consent, were properly given the jury.

Under the evidence of the plaintiff as to defendant's willful act, after deliberation and preparation to that end by its authorized agents to act in the...