City of Birmingham v. Ingram

• Decision Date: 28 October 1924
• Docket Number: 6 Div. 375
• Citation: 103 So. 595,20 Ala.App. 444
• Parties: CITY OF BIRMINGHAM v. INGRAM.
• Court: Alabama Court of Appeals

103 So. 595

20 Ala.App. 444

CITY OF BIRMINGHAM v. INGRAM.

6 Div. 375

Court of Appeals of Alabama

October 28, 1924

Rehearing Granted Dec. 16, 1924

Rehearing Denied Jan. 13, 1925

Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.

Action for damages by L.V. Ingram against the City of Birmingham for maintaining a nusiance. Judgment for plaintiff, and defendant appeals. Affirmed on rehearing.

W.J Wynn and W.M. Woodall, both of Birmingham, for appellant.

Harsh Harsh & Harsh, of Birmingham, for appellee.

FOSTER, J.

Suit was instituted on the 20th day of August, 1917, by L.V Ingram against the city of Birmingham, a municipal corporation, for damages for injuries sustained by the plaintiff from a dump pile maintained by the city, which the plaintiff claimed was a nuisance. The original complaint contained one count, in which were the following averments:

"Defendant has dumped or maintained large quantities of garbage, trash, and débris in or close to the residence of plaintiff and others in his community in Jefferson county Ala., in or near the city of Birmingham, Ala., thickly populated, which garbage, trash, or débris presented an unsightly appearance and emitted unpleasant, vile, offensive, or unhealthful odors, gases, or smoke, which was borne to plaintiff's said residence in such sort that same was a nuisance, and defendant thereby maintained a nuisance as aforesaid, from which nuisance plaintiff suffered special damages, and plaintiff avers that as a proximate consequence of the maintenance of said nuisance plaintiff's said residence, which was in Jefferson county, Ala., in or near the city of Birmingham, *** was rendered less pleasant and habitable as a place of residence for plaintiff and his family, and plaintiff at his said residence and within the curtilage thereof was compelled to inhale unpleasant, vile, and offensive odors, gases, or smoke from said garbage, trash, or débris, and was made sick and was greatly vexed, harassed, and annoyed, and suffered great mental pain and anguish, all to his damage $5,000; wherefore he sues."

Upon the trial on April 3, 1923, the court, on motion of defendant, struck from the said complaint the following averments:

"Plaintiff at his said residence, and within the curtilage thereof, was compelled to inhale unpleasant, vile, offensive, or unhealthful odors, gases, or smoke from said garbage, trash, or débris," and "was made sick and was greatly vexed, harassed, and annoyed, and suffered great mental pain and anguish."

There then remained in the complaint only the following averment with reference to damage suffered by plaintiff:

"From which nuisance plaintiff suffered special damages, and plaintiff avers that as a proximate consequence of the maintenance of said nuisance plaintiff's said residence *** was rendered less pleasant and habitable as a place of residence for plaintiff and his family."

The court then sustained the demurrers of the defendant to said count 1 of the complaint.

Thereupon the plaintiff, over objection of defendant, amended his complaint by adding counts 2, 3, and 4. The motion of defendant to strike each of said counts was overruled.

The demurrers of the defendant were sustained as to count 2 and overruled as to counts 3 and 4.

The trial was had upon counts 3 and 4, as amended, and the plea of general issue by defendant. There was a verdict for the plaintiff for $100, and judgment entered against the defendant. Thereafter, within time, the defendant filed a motion for a new trial, and upon hearing the court reduced the amount of the judgment from $100 to $25, which remittitur of damages plaintiff accepted, and the court overruled the motion for new trial, to which defendant excepted. From the judgment on the trial, and from the order of the court refusing defendant's motion for new trial, the defendant appeals.

The first assignment of error is directed to the action of the court in overruling defendant's motion to strike counts 3 and 4 as amended.

The appellant contends that count 3 as amended, averring merely that plaintiff suffered special damages in that "his residence was rendered less pleasant and habitable as a place of residence for plaintiff and his family," claims damages for personal injuries merely, and failing to aver compliance with the statutory requirement that within 90 days after the receipt of the alleged injuries or damages "the plaintiff filed with the defendant his sworn statement stating substantially the manner in which the injuries were received, and the day and time and place where said injuries were received, and the amount of damages claimed, and stating with substantial accuracy the house number where the plaintiff resides," deprived the court of jurisdiction of the cause, and that defendant's motion to strike the count on that ground should have been sustained.

Section 12 of Act approved August 20, 1919 (Acts 1915, p. 294), reads as follows:

"No suit shall be brought or maintained nor shall any recovery be had against any such city on a claim for personal injury, or for neglect or wrongful injury to personal property, unless within ninety days from the receipt of such injury, a sworn statement be filed with the city clerk, or the city officer corresponding thereto, by the party injured, stating substantially the manner in which the injury was received and the day and time and place where the accident occurred, and the damage claimed, and stating with substantial accuracy the nature and character of the injury received and the street and house number where the party injured resides."

In a complaint against the city of Birmingham for personal injuries it is necessary that the complaint allege that a sworn statement of such injuries was filed with the city clerk as required by section 12 of Act 1915, supra, as a condition precedent to suit, and without such averment of compliance with the statute, the court is without jurisdiction to try the cause, and the complaint should be stricken on motion of the defendant. Acts 1915, supra; City of Birmingham v. Prickett, 207 Ala. 79, 92 So. 7; Jones v. City of Birmingham, 207 Ala. 48, 92 So. 898; Grambs v. City of Birmingham, 202 Ala. 490, 80 So. 874.

A question for determination is: Does count 3 claim damages for personal injuries merely?

In City of Birmingham v. Prickett, supra, and Jones v. City of Birmingham, supra, the count considered by the court averred, in addition to the averments in count 3 in the instant case (plaintiff's residence by said nuisance was rendered less pleasant and habitable as a place of residence for plaintiff and his family), also the following:

"And plaintiff at his said residence and within the curtilage thereof, was compelled to inhale unpleasant, vile, offensive and unhealthy odors, gases and smoke from said garbage, trash or débris, and was made sick and greatly vexed, harassed and annoyed and suffered great mental pain and anguish, all to his damage," etc.

Justice Miller, speaking for the court in the Prickett Case, supra, said, "This complaint clearly avers and claims damages for personal injuries," citing Jefferson Fertilizer Co. v. Rich, 182 Ala. 633, 62 So. 40. And the court further held that under the complaint no personal injury damages were recoverable as there was no averment and no proof of compliance with section 12 of the Act of 1915, supra. The court in the Prickett Case held that the complaint claimed damages for personal injuries, but did not hold that it did not also claim damages for injury to the home or residence of the plaintiff. Indeed, the court in effect held that it claimed damages for both personal injuries and for injury to the residence or home. The court adopted with approval the doctrine declared in Jefferson Fertilizer Co. v. Rich, supra, that the measure of damages for injuries to the home or residence by such alleged nuisances was:

"What, in money, would represent the difference between the value of plaintiffs' property for said twelve months as a home with and without said odors and vapors."

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