Bieker v. City of Cullman

• Decision Date: 11 April 1912
• Citation: 59 So. 625,178 Ala. 662
• Parties: BIEKER v. CITY OF CULLMAN.
• Court: Alabama Supreme Court

59 So. 625

178 Ala. 662

BIEKER v. CITY OF CULLMAN.

Supreme Court of Alabama

April 11, 1912

Rehearing Denied June 29, 1912.

Appeal from Circuit Court, Cullman County; D. W. Speake, Judge.

Action by J. F. Bieker against the City of Cullman. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Somerville J., dissenting.

Count 3 is as follows: "Plaintiff claims of defendant the sum of $200 damages for failure of the defendant, who was at the time a municipal corporation, and as such it was its duty to keep its drains or sewers in a condition sufficient for the free passage of water, and to exercise reasonable care diligence, and skill in keeping its drain or sewer on or across Fourth street, about 125 feet from plaintiff's lot No. 237, at or near the Cullman county jail, in the city of Cullman, in a condition sufficient for the free passage of water in times of rainfall; and by reason of the failure of the defendant to keep said drain or sewer in a condition sufficient for the free passage of water in time of rainfall the plaintiff was damaged in this: That water backed up in front of said drain or sewer, and was thereby diverted from its natural course and cast in large bodies upon lot No. 237 on or about March 22, 1909, of which lot plaintiff was seised and possessed, whereby a porch on the north side of said lot which porch was the principal means of ingress or egress to said lot, was washed away, injured, or destroyed; and the foundation to said building on said lot was rendered insecure, was weakened and greatly damaged by the water cast upon said lot as aforesaid, and part of the surface of said lot was washed away and gulleys were formed therein. And plaintiff avers that said city had notice that said drain or sewer was insufficient for the free passage of water in time of rainfall, to the damage of plaintiff."

Count 4 is the same as count 3, except that it alleges that the sewer became in bad condition by virtue of the accumulation of sand, loose rock, timbers, etc., in the sewer, which impeded the free passage of the water, and of which condition the defendant had notice, and failed to remove. The other counts sufficiently appear from the opinion.

Emil Ahlrichs and W. T. L. Cofer, both of Cullman, for appellant.

J. B. Brown, of Cullman, for appellee.

MAYFIELD J.

The complaint contained eight counts. Demurrer was sustained as to counts 3, 5, 7, and 8, and overruled as to the others, upon which the case was tried. The trial resulted in verdict and judgment for defendant city. From that judgment appellant prosecutes this appeal, here assigning as error the action of the court in sustaining the demurrer to each of the counts 3, 5, 7, and 8.

Count 3 was evidently copied from count 9 in the case of Arndt v. Cullman, reported in 132 Ala. 540, 31 So. 478, 90 Am. St. Rep. 922. The record in that case has been examined; and it shows that count 3 is evidently a copy of count 9 in the Arndt Case. A demurrer was interposed to count 9, in that case, containing 72 grounds. The trial court, in that case, sustained the demurrer, as did the trial court in this case; but on appeal of the Arndt Case this court held that count to be good, and that there was therefore error on the part of the trial court. We see no reason to hold otherwise now, or to overrule that case.

It is insisted that, if error, it was without injury, because plaintiff was entitled to the same relief and damages, under other counts upon which the trial was had, that he could have obtained under this count. To this we cannot agree. We find no one of the counts, to which the demurrer was overruled, that was even practically a duplicate of count 3. Evidence would probably have been admissible under that count that would not have been admissible under any one of the other counts. We are unable to say that this error was without injury.

The demurrer was properly sustained as to the other counts. They sought to recover damages on account of the failure of the city to abate an alleged nuisance. One alternative averment was that the city allowed the nuisance to...