City of Birmingham v. Norwood

• Decision Date: 29 October 1929
• Docket Number: 6 Div. 465.
• Citation: 23 Ala.App. 443,126 So. 616
• Parties: CITY OF BIRMINGHAM v. NORWOOD.
• Court: Alabama Court of Appeals

126 So. 616

23 Ala.App. 443

CITY OF BIRMINGHAM v. NORWOOD.

6 Div. 465.

Court of Appeals of Alabama

October 29, 1929

Rehearing Denied Nov. 19, 1929.

As modified On Rehearing March 4, 1930.

Appeal from Circuit Court, Jefferson, County; Roger Snyder, Judge.

Action for damages caused by an obstructed sewer by J. M. Norwood against the City of Birmingham. From a judgment for plaintiff, defendant appeals.

Affirmed conditionally on rehearing.

Horace C. Wilkinson, of Birmingham, for appellant.

Oscar Metz and Marvin Woodall, both of Birmingham, for appellee.

BRICKEN P.J.

Action by J. M. Norwood (appellee) against the city of Birmingham (appellant) for damages caused by stoppage or obstruction of sanitary sewer of city of Birmingham, whereby the basement in plaintiff's home was flooded with water, etc.

The plaintiff's home was situated in that part of Birmingham known as West End, and which was formerly the town West End. The undisputed evidence showed that the particular sewer which became obstructed was "built by the Elyton Land Company before West End came into Birmingham, so that part of the sewerage system was inherited by the City (of Birmingham) when the greater Birmingham bill was passed and their control passed to the City of Birmingham." The town of West End was annexed to the city of Birmingham in 1909 by legislative enactment, Acts Sp. Sess. 1909, p. 392. There was no evidence that the city of Birmingham, since the annexation of West End, had changed the condition of this sewer, or had made or undertaken to make any changes, improvements, or alterations in the sewer, or to reconstruct the sewer.

It is settled in this state that, in the exercise of its statutory powers to construct and maintain a system of sewers and drains, a municipal corporation acts ministerially, and that for damages proximately resulting from negligence in the construction or maintenance of sewers and drains, a municipal corporation must respond in damages to the injured party. City of Birmingham v. Kircus, 19 Ala. App. 614, 99 So. 780. City of Montgomery v. Stephens, 14 Ala App. 274, 69 So. 970; Ginzler v. City of Birmingham, 6 Ala. App. 666, 60 So. 976; Bieker v. City of Cullman, 178 Ala. 662, 59 So. 625; Arndt v. City of Cullman, 132 Ala. 540, 31 So. 478, 90 Am. St. Rep. 922. And an action for damages for negligence in the construction or maintenance of a drain or sewer cannot be defeated on the ground that it was for the benefit of the public health. Montgomery v. Stephens, supra.

Appellant relies upon the court's rulings in the cases of Campbell v. City of Vanceburg (Ky.) 101 S.W. 343 and Harney v. City of Lexington, 130 Ky. 251, 113 S.W. 115, to exempt it from liability. But the doctrine asserted in those cases seems to be isolated and without support in other jurisdictions. It is contrary to the decisions of our Supreme Court in the case of Ivey v. City of Birmingham, 190 Ala. 196, 67 So. 506. We are of the opinion, and therefore hold, that the city of Birmingham was under the same duty with reference to the maintenance of the sewer in question as if the city of Birmingham had itself constructed it.

The complaint alleges that, as a proximate consequence of an obstruction or stoppage in the city's sewer, the basement of plaintiff's home, which was served by the city's sewer, through a private sewer running from plaintiff's home to the city sewer, was flooded with water and foul sewerage, etc., to a depth of several feet. In an attempt to charge liability to the city for said injuries, the plaintiff alleges "that said stoppage or obstruction was the proximate consequence of said city's negligence in not exercising reasonable care to keep said city sewer free of stoppage or obstruction, or in failing to remove said stoppage or obstruction within a reasonable time after plaintiff informed it of said flooding of his said premises." Actionable negligence is thus attempted to be set forth by alternative averments of negligent conduct. Appellant, by appropriate demurrer, challenged the sufficiency of each of the alternatives. Where a complaint sets out the grounds of recovery in the disjunctive, each alternative allegation must be sufficient. Donaldson v. Foreman, 213 Ala. 232, 104 So. 406.

It was incumbent upon the plaintiff, in order to maintain the action, to aver and prove express notice of the alleged defect in the sewer, or facts from which it might be inferred that the corporate authorities were properly chargeable with constructive notice thereof. Arndt v. City of Cullman, 132 Ala. 540, 31 So. 478, 90 Am. St. Rep. 922. And each of the alternative averments of negligence must be sufficient to meet this test. Courts will not presume that parties have a better case or a better defense than that which they state in their pleadings. Scott v. Scott, 202 Ala. 244, 80 So. 82.

The requirement of notice, of course, has no application where it is alleged that the injuries were received as a proximate consequence of a negligent construction of the sewer, as was the case in City of Jasper v. Barton, 1 Ala. App. 472, 56 So. 42; City of Birmingham v. Kircus, 19 Ala. App. 614, 99 So. 780; and Aycock v. City of Decatur, 219 Ala. 486, 122 So. 664.

The second alternative allegation of negligence is sufficient to show notice to the defendant of the alleged obstruction or stoppage, but we are of the opinion that under the decision of the Supreme Court in Arndt v. City of Cullman, 132 Ala. 540, 31 So. 478, 90 Am. St. Rep. 922, the first alternative allegation of negligence is insufficient. In that case the allegations of negligence the same in substance and almost identical in terms with the plaintiff's first alternative in the...