Birmingham Realty Co. v. Thomason

• Decision Date: 14 May 1912
• Citation: 63 So. 65,8 Ala.App. 535
• Parties: BIRMINGHAM REALTY CO. v. THOMASON.
• Court: Alabama Court of Appeals

63 So. 65

8 Ala.App. 535

BIRMINGHAM REALTY CO. v. THOMASON.

Court of Appeals of Alabama

May 14, 1912

Rehearing Denied June 19, 1912

Appeal from Circuit Court, Jefferson County; A.O. Lane, Judge.

Action by R.E. Thomason against the Birmingham Realty Company for injuries caused by blasting. Judgment for plaintiff, and defendant appeals. Affirmed.

The second count of the complaint is as follows, after alleging the residence of plaintiff and his family, and the location of the garden and outbuildings on the premises: "That the defendant, through its servants and agents, acting within the line and scope of their authority, under their employment by defendant, beginning on, to wit, the 1st day of August 1907, and on divers other dates since said date, up to and including the present time, has been engaged in blasting stone and other substance near said premises, said servants or agents of plaintiff so acting within the line and scope of their authority under said employment, knowing that the blasting of rock, stone, and other substances near said premises as they were doing would greatly frighten plaintiff and endanger his life, and frighten and endanger the lives of his family, would damage his live stock, gardens, premises yards, houses, and poultry by casting on plaintiff's said dwelling house, outhouse, stable, lot, garden, and yard, so located on said premises, said rock, stone, and other substances, wantonly caused said rock, stone, or other substances to be cast upon plaintiff's dwelling house outhouse, stable and lot, garden and yard, so located on said premises, and as a proximate consequence thereof greatly frightening and endangering plaintiff's life as well as plaintiff's family, greatly damaging his live stock yard, house, premises, and poultry, all to plaintiff's damage," etc.

See, also, 63 So. 67.

London & Fitts, of Birmingham, for appellant.

Frank S. White & Sons, of Birmingham, for appellee.

WALKER, P.J.

We are not of opinion that the second count of the complaint as amended was subject to the ground of demurrer to it now relied on by the counsel for the appellant, which suggested its failure to allege or show how or in what manner the defendant (the appellant here) was guilty of wantonness. As we construe that count of the complaint with the addition to its averments made by the amendment, the wanton conduct complained of is that of the defendant's employés acting within the line or scope of their employment. Their conduct as it is described in the count as amended, is shown to have been wanton, as it is plainly averred that they, knowing that the blasting operations as they were carrying them on for the defendant near the plaintiff's premises, upon which he resided with his family, would greatly frighten plaintiff and endanger his life, and frighten the members of his family and endanger their lives, and would damage his live stock, poultry, garden, yard, and houses, by casting thereon rock, stone, and other substances wantonly caused said rock, stone, and other substances to be cast on plaintiff's dwelling house, outhouses, stable, lot, garden, and yard, and thereby endangered the lives of the plaintiff and his family and damaged his property. The count was not subject to the criticism that its description of the conduct which it characterizes as wanton fails to show that it was wanton. The pleading was not defective in the respect in which the complaints in the cases referred to in this connection by the counsel for the appellant (Birmingham Ore Co. v. Grover, 159 Ala. 276, 48 So. 682, Southern Railway Co. v. Bunt, 131 Ala. 591, 32 So. 507) were held to be faulty, because of the failure of their specific averments of the facts relied on to show that the defendant was guilty of the breach of duty averred in general terms as the ground of the plaintiff's right of recovery. In other words, it did not count on wantonness, and at the same time show by its specific averments that the conduct relied on did not amount to wantonness. It shows that what the defendant's employés did, within the line or scope of their employment, was with a knowledge of the hurtful consequences therefrom resulting to the plaintiff, his family, and his property, and with reckless indifference to such consequences. In doing this it sufficiently averred or showed wantonness. Montgomery Street Ry. Co. v. Rice, 142 Ala. 674, 38 So. 857.

The action of the court in permitting the plaintiff to prove the ages of his children is assigned as error. One of the features of the alleged wrong, as it was specifically complained of, was its result in impairing or interfering with the plaintiff's right to enjoy his place of residence in comfort and safety to himself and the members of his family. Evidence as to what family the plaintiff had and as to the ages of his children was pertinent on the inquiry as to the nature and extent of the violation of his rights in that regard resulting from the conduct complained of. The evidence objected to was appropriate to support averments of the complaint, and no valid ground of objection to it has been pointed out.

The claim that the defendant was entitled to...