Brookside-Pratt Mining Co. v. McAlister

• Decision Date: 01 June 1916
• Docket Number: 6 Div. 317
• Citation: Brookside-Pratt Mining Co. v. McAlister, 196 Ala. 110, 72 So. 18 (Ala. 1916)
• Parties: BROOKSIDE-PRATT MINING CO. v. McALISTER et ux.
• Court: Alabama Supreme Court

72 So. 18

196 Ala. 110

BROOKSIDE-PRATT MINING CO. v. McALISTER et ux.

6 Div. 317

Supreme Court of Alabama

June 1, 1916

Appeal from Circuit Court, Jefferson County; E.C. Crow, Judge.

Action by John McAlister and wife against the Brookside-Pratt Mining Company, for damages for overflow, etc.From a judgment for plaintiffs, defendant appeals.Transferred from Court of Appeals under ActApril 18, 1911(Laws 1911, p. 450)§ 6.Reversed and remanded.

Charge 8 refused to defendant is as follows:

I charge you that you cannot award plaintiff any damages for mental anxiety caused by the illness of their children.

Tillman Bradley & Morrow, T.A. McFarland, and E. Crampton Harris, all of Birmingham, for appellant.

J.W Altman, of Birmingham, for appellees.

MAYFIELD J.

This is a joint action by husband and wife to recover damages.The alleged wrong was the flooding of plaintiffs' premises with water drained from defendant's mine.The damages sought to be recovered were injuries to the premises and home, in the way of filling the well with foul water, and causing the foul water to run and to stand on the premises and under the house, rotting the house, and rendering the home less comfortable and less valuable by reason of mud slush, etc.To these damages, as for injuries to plaintiffs' home and premises, are added damages as for personal injuries--that is, physical and mental pain and anguish, and inconvenience, etc., on account of the illness of plaintiffs' children and (in one count) of the husband, as a proximate result of the wrong alleged.

It is insisted that plaintiffs were not entitled to recover damages as for injuries to the home, because no joint ownership of the home was proven.There was evidence of possession and control of the premises and home by the plaintiffs sufficient, in connection with the other evidence, to carry the question of ownership to the jury, and therefore to prove that part of the complaint as alleged.There was also sufficient evidence to carry to the jury the question of injuries to the premises as alleged, and hence the defendant was not entitled to the requested charges, which would deny a recovery of any damages as to the premises or any part thereof, the well, house, etc.

Possession of land, however recent, is prima facie evidence of title, and will support an action for an injury to the freehold, or for the recovery of possession, against one who does not show a better right.McCall v. Doe,17 Ala. 533;Eakin v. Brewer,60 A. 579;Mfg. Co. v. Gibson,62 Ala. 369;Higdon v. Kennemer,120 Ala. 193, 24 So. 439;4 Mayf.Dig. 512.

"It is a maxim of the law that the party in possession of lands is presumed to have a valid title thereto, and this presumption can be overcome only by providing title out of such party.Indeed, it has been said that possession of real estate is prima facie evidence of the highest estate in the property; that is, a seisin in fee."Id.

The action being joint, the plaintiffs were not entitled to recover damages which were purely personal to each and not joint as to both, such as physical or mental pain, anguish or inconvenience of either the husband or the wife alone.Even if both suffered like damages in this respect, such are necessarily separate and individual, and go to each separately, and not to both jointly.Such separate and individual damages are not recoverable in a joint action like this.Jefferson Fert. Co. v. Rich et al.,182 Ala. 633, 62 So. 40.

Mr. Dicey, in his book on Parties, states the law and the rules of practice correctly and succinctly as follows:

"1.Persons who have a separate interest and sustain separate damages must sue separately.

"2.Persons who have a separate interest, but sustain a joint damage, may sue either jointly or separately in respect thereof.

"3.Persons who have a joint interest must sue jointly for an injury to it."

Dicey on Parties to Actions (2d Ed.) 401.

Several parties cannot sue jointly for injuries to their respective...