Birmingham Waterworks Co. v. Martini

• Decision Date: 23 November 1911
• Citation: 2 Ala.App. 652,56 So. 830
• Parties: BIRMINGHAM WATERWORKS CO. v. MARTINI.
• Court: Alabama Court of Appeals

56 So. 830

2 Ala.App. 652

BIRMINGHAM WATERWORKS CO. v. MARTINI.

Court of Appeals of Alabama

November 23, 1911

Appeal from City Court of Birmingham; Charles W. Ferguson, Judge.

Action by J. T. Martini against the Birmingham Waterworks Company. From a judgment for plaintiff, defendant appeals. Affirmed.

London & Fitts, for appellant.

Allen & Bell, for appellee.

DE GRAFFENRIED, J.

This was an action of trespass on the case, brought by appellee against appellant, for damages for maintaining a nuisance on the premises on which he resided.

1. The action of trespass on the case is a form of action devised by the law to cover all cases where an actionable wrong exists for which no other remedy has been provided, and is based upon the mere justice and conscience of the case. As the system of equity was adopted to furnish a remedy for the enforcement of those rights and the adjudication of those controversies for which the law, on account of its inflexibility, furnishes no remedy, so the action of trespass on the case was created by the founders of the common law for the purpose of providing a full and complete remedy for those wrongs for which, as the business and civilization of mankind expands, the law has provided no other method of redress. "The law doth give unto him his action upon his case, that he may recover his damages and this action the law doth give unto him, for whensoever the law giveth anything, it giveth also a remedy for the same." Coke upon Litt. vol. 1, p. 56a.

As it is the purpose of the law, as stated by Lord Coke, to furnish to each person a complete remedy for obtaining exact justice under this form of action the party aggrieved, if entitled to recover at all, is entitled to a complete recovery for all damages suffered as a proximate result of the wrong, unless they are "so elusive and intangible and so easily simulated" that the law will not permit them to be considered as legal damages under the facts of the particular case. Western Union Telegraph Co. v. Westmoreland, 151 Ala. 319, 44 So. 382.

In all actions for damages for the breach of a contract, the law is that the damages recoverable are such as were the natural and proximate consequences of the breach, and such as may reasonably be supposed to have been within the contemplation of the parties at the time the contract was made, as a probable result of such breach, and only such damages. In some instances there are wrongs which grow out of a breach of a contract, and in which assumpsit and an action of trespass on the case are concurrent remedies. In such cases, says our Supreme Court, "the measure of damages cannot be altered in any substantial respect by the mere adoption of one form of action rather than another for the redress of the same grievance," and in such cases the damages recoverable are those which are the natural and proximate consequences of the breach, and such as may reasonably be supposed to have been within the contemplation of the parties as a consequence of the breach, when the contract was made. Western Union Telegraph Co. v. Westmoreland, supra.

When, however, the action is for compensatory damages for a tortious act, disassociated from any matter of contract or its breach, then the question as to whether the particular element of damages was or was not within the contemplation of the wrongdoer when he committed the tort is irrelevant. In such case the injured party, if entitled to recover at all, is entitled to recover all of his actual damages proximately and naturally caused by the wrong, whether contemplated or not. Birmingham Water Works Co. v. Ferguson, 164 Ala. 494, 51 So. 150; 13 Cyc. 28. "It is not necessary that the result of the injury should have been foreseen. A wrongdoer is responsible for the natural and proximate consequences of his misconduct, and not for such damages only as might reasonably be supposed to have been in the contemplation of the parties as a probable result of the tort. Where actual damages have been proved in an action for personal injuries, the motive of the defendant will not be considered. It is sufficient if the injury complained of was the natural or proximate consequence of the wrongful act, and is not too remotely connected with the original injury complained of." 13 Cyc. 30.

2. Injury to the feelings--mental harassment--is an element of actual damages. "Wounding a man's feelings is as much an element of actual damages as breaking his limb." Head v. Georgia Pacific, 79 Ga. 358, 7 S.E. 217, 11 Am. St. Rep. 434.

As a general rule, the law will not permit the recovery of damages for mental distress, where the tort results in mere injury to property. If the property is permanently injured, the true measure of damages, as a general rule, is the difference between the market value of the property before and after the injury; and if the injury is merely temporary the measure of damages, as a general rule, is the depreciation in the value of the hire or use or rent of the property during the period covered by the temporary injury. But, in addition to a recovery for the loss in the market value of the property or its rental value, as above stated, the plaintiff may, in such a case, recover any special or incidental damages which he may have suffered thereby, and which proximately and naturally resulted from the wrong, whether the injury was permanent or temporary. Eufaula v. Simmons, 86 Ala. 515, 6 So. 47.

Where there has been a physical injury to a person, under circumstances warranting the recovery of compensatory damages therefor, mental suffering, which is a natural incident thereto, furnishes one of the elements of recoverable damages, and in such case the jury may always consider the element of mental suffering and award compensation therefor. The body and mind are so closely connected that the mind is, of necessity, affected by any injury to the body. 8 A. & E. Ency. of Law, pp. 662, 663, 664. While there have been many instances in which the courts, in cases of simple negligence merely, because there was no physical injury, but where the circumstances showed great mental agony, have denied relief, they have universally allowed mental suffering to be considered as an element of damages in all cases where there is the slightest physical injury accompanied by circumstances showing mental distress. Warren v. Boston R. R. Co., 163 Mass. 484, 40 N.E. 895; 8 A. & E. Ency. of Law, p. 666.

3. In the present case the evidence tended to show that the appellee lived in Elyton, a suburb of Birmingham, and in a thickly settled neighborhood, and that he and his neighbors were supplied with water by appellant. The water was conductèd down a street by means of a main pipe, and was carried by the main pipe into the residence and business lots supplied by appellant by means of service (1/2-inch) pipes. Water escaped and formed pools and ponds in appellee's yard. From these pools and ponds foul odors and malarial emanations arose, causing mosquitoes and creating sickness in appellee's family, and rendering his home undesirable as a place of residence. There was evidence in the case tending to show that the nuisance complained of was due to a hole or break in the main pipe, from which the water escaped. There was evidence, also,...