City of Bessemer v. Pope, 6 Div. 214.

CourtSupreme Court of Alabama
Writing for the CourtMILLER, J.
Citation212 Ala. 16,101 So. 648
PartiesCITY OF BESSEMER v. POPE.
Docket Number6 Div. 214.
Decision Date16 October 1924

101 So. 648

212 Ala. 16

CITY OF BESSEMER
v.

POPE.

6 Div. 214.

Supreme Court of Alabama

October 16, 1924


Appeal from Circuit Court, Jefferson County, Bessemer Division; J. C. B. Gwin, Judge.

Action for damages by J. C. Pope against the City of Bessemer. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Reversed and remanded.

Bumgardner & Wilson, of Bessemer, for appellant.

Benton & Bentley, of Bessemer, for appellee.

MILLER, J.

This is a suit for damages by J. C. Pope against the city of Bessemer for maintaining and operating a nuisance in the [101 So. 649] form of a trash or dump pile, where quantities of garbage, trash, and débris were placed close to the residence of the plaintiff, and the offensive odors from it rendered "his home less pleasant and habitable," and the vile and offensive odors from it vexed and annoyed him and caused him mental pain and anguish. The trial resulted in a verdict by a jury in favor of the plaintiff, judgment thereon by the court, and this appeal is by the defendant from it.

There are four counts in the complaint, but only one, B. was submitted by the court to the jury. The demurrers of the defendant to it were overruled by the court. This count is framed, in part at least, like the count in the case of City of Birmingham v. Prickett, 207 Ala. 79, 92 So. 7. The appellant insists it is demurrable because the property claimed to have been damaged is not sufficiently described. It describes it in one place as "the residence of plaintiff in a community in Jefferson county, Alabama, in or near the city of Bessemer," in or close to this place where the defendant dumped its garbage, trash, and débris during the month of June, 1922, or the first of July, 1922; and in another place it is described as "his residence, which was in Jefferson county, Ala., and at or near Circle Heights, near West Lake;" and there are other averments showing the residence was occupied by him and his family during that time. This description of the property is sufficient to show where the personal injury from the offensive odors, personal annoyance, and inconvenience were received, and where the property, his home, alleged to have been rendered thereby less habitable, was located, and the cause of the injury. This count also alleges:

"And plaintiff avers that a sworn statement of the injuries herein complained of, stating substantially the manner in which the injuries complained of were sustained and the place where sustained, and the time when sustained was filed with the clerk of the city of Bessemer, one of the defendants, more than ten days before the commencement of this action by the plaintiff."

These averments in the count show a sufficient compliance with section 1275 of the Code of 1907, so it is not subject to demurrer on that account. It alleges more than this statute requires. This count states a cause of action against the defendant and is not subject to the grounds of demurrer assigned to it. Murkerson v. Adler, 178 Ala. 622, 59 So. 505; Brannon v. City of Birmingham, 177 Ala. 419, 59 So. 63; City of Birmingham v. Prickett, 207 Ala. 79, 92 So. 7; Grambs v. City of Birmingham, 202 Ala. 490, 80 So. 874.

This suit was originally filed against the city of Bessemer and the Bessemer Coal, Iron & Land Company. The plaintiff by amendment had the Bessemer Coal, Iron & Land Company stricken as a defendant from the complaint. The defendant, city of Bessemer, by motion then asked the court to nonsuit the plaintiff to this action because it appears from the complaint the stricken defendant was equally liable with the city and should be sued jointly with it; which motion the court refused. If in this the court committed error, which we do not decide, it is without injury, for it appears from the evidence this alleged nuisance was maintained and operated alone by the city of Bessemer, and the Bessemer Coal, Iron & Land Company was neither a necessary nor proper party defendant. It was not made to appear to the court that it ought to be joined as a defendant with the city of Bessemer by the evidence in the cause. Sections 1273 and 1274, Code 1907; Milner v. City of Birmingham, 201 Ala. 689, 79 So. 261.

The defendant pleaded general issue with leave to give in evidence any defensive matter the same as if it had been specially pleaded. The jury was selected; the cause was stated to them by the attorneys for the parties; and then the following proceedings were had:

"Thereupon plaintiff made demand on the defendant to produce in court the petition that has been signed by the people in that community asking the city council to stop dumping trash over there near their doors, and which were signed by men, women, and children, and which is on file over in the city hall
"Thereupon the defendant objected to said remark coupled with said demand, made in the presence of the jury, on the ground that it was a very unfair and unethical remark to be made in their presence, and could not be supported by the plaintiff in evidence, and asked
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7 practice notes
  • McCarroll v. City of Bessemer, 6 Div. 938
    • United States
    • Supreme Court of Alabama
    • September 28, 1972
    ...that the act of complying with such requisite to enter suit is a fact that may be alleged as such. And in City of Bessemer v. Pope, 212 Ala. 16, 101 So. 648, the plaintiff '. . . that a sworn statement of the injuries herein complained of, stating substantially the manner in which the injur......
  • City of Decatur v. Parham, 8 Div. 910
    • United States
    • Supreme Court of Alabama
    • February 19, 1959
    ...in close proximity to the plaintiff's place of abode. City of Birmingham v. Prickett, 207 Ala. 79, 92 So. 7; City of Bessemer v. Pope, 212 Ala. 16, 101 So. 648. See City of Birmingham v. Ingram, 20 Ala.App. 444, 103 So. The case of Downey v. Jackson, supra, was on the equity side of the cou......
  • F. Becker Asphaltum Roofing Co. v. Murphy, 6 Div. 103.
    • United States
    • Supreme Court of Alabama
    • April 14, 1932
    ...Ry. Co. v. Lee, 167 Ala. 268, 52 So. 648; St. Louis & S. F. Ry. Co. v. Mills, 220 Ala. 107, 124 So. 231; City of Bessemer v. Pope, 212 Ala. 16, 101 So. 648; International Harvester Co. v. Williams, 222 Ala. 589, 133 So. 270. The evidence made a case for jury decision and the affirmative......
  • City of Bessemer v. Chambers, 6 Div. 986.
    • United States
    • Supreme Court of Alabama
    • May 14, 1942
    ...raised. City of Birmingham v. Ingram, 20 Ala.App. 444, 103 So. 595, certiorari denied 212 Ala. 552, 103 So. 599; City of Bessemer v. Pope, 212 Ala. 16, 101 So. 648; City of Birmingham v. Prickett, 207 Ala. 79, 92 So. 7. See, also, Adler & Co. v. Pruitt, 169 Ala. 213, 53 So. 315, 32 L.R.......
  • Request a trial to view additional results
7 cases
  • McCarroll v. City of Bessemer, 6 Div. 938
    • United States
    • Supreme Court of Alabama
    • September 28, 1972
    ...that the act of complying with such requisite to enter suit is a fact that may be alleged as such. And in City of Bessemer v. Pope, 212 Ala. 16, 101 So. 648, the plaintiff '. . . that a sworn statement of the injuries herein complained of, stating substantially the manner in which the injur......
  • City of Decatur v. Parham, 8 Div. 910
    • United States
    • Supreme Court of Alabama
    • February 19, 1959
    ...in close proximity to the plaintiff's place of abode. City of Birmingham v. Prickett, 207 Ala. 79, 92 So. 7; City of Bessemer v. Pope, 212 Ala. 16, 101 So. 648. See City of Birmingham v. Ingram, 20 Ala.App. 444, 103 So. The case of Downey v. Jackson, supra, was on the equity side of the cou......
  • F. Becker Asphaltum Roofing Co. v. Murphy, 6 Div. 103.
    • United States
    • Supreme Court of Alabama
    • April 14, 1932
    ...Ry. Co. v. Lee, 167 Ala. 268, 52 So. 648; St. Louis & S. F. Ry. Co. v. Mills, 220 Ala. 107, 124 So. 231; City of Bessemer v. Pope, 212 Ala. 16, 101 So. 648; International Harvester Co. v. Williams, 222 Ala. 589, 133 So. 270. The evidence made a case for jury decision and the affirmative......
  • City of Bessemer v. Chambers, 6 Div. 986.
    • United States
    • Supreme Court of Alabama
    • May 14, 1942
    ...raised. City of Birmingham v. Ingram, 20 Ala.App. 444, 103 So. 595, certiorari denied 212 Ala. 552, 103 So. 599; City of Bessemer v. Pope, 212 Ala. 16, 101 So. 648; City of Birmingham v. Prickett, 207 Ala. 79, 92 So. 7. See, also, Adler & Co. v. Pruitt, 169 Ala. 213, 53 So. 315, 32 L.R.......
  • Request a trial to view additional results

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