City of Birmingham v. Kircus

• Decision Date: 08 April 1924
• Docket Number: 6 Div. 301.
• Citation: 99 So. 780,19 Ala.App. 614
• Parties: CITY OF BIRMINGHAM v. KIRCUS.
• Court: Alabama Court of Appeals

99 So. 780

19 Ala.App. 614

CITY OF BIRMINGHAM v. KIRCUS.

6 Div. 301.

Court of Appeals of Alabama

April 8, 1924

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

Action for damages by Lenner Agnes Kircus against the city of Birmingham, for negligent construction and maintenance of a sewer. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The complaint is as follows:

"Plaintiff claims of the defendant the sum of $1,000 as damages, for that heretofore, on, to wit, the 24th day of December 1921, the defendant was at that time and still is a municipal corporation, and as such it was its duty to keep its drains or sewers in a condition sufficient for the free passage of water, including any waters which were or might have been diverted from its natural flow by reason of any acts of the defendant, and it was its further duty not to divert water in large quantities from its natural flow in such a manner as to cause the overflow of the property of the plaintiff hereinafter described, and to exercise reasonable care, diligence, and skill in so constructing and maintaining its drains or sewers on or across Spring street otherwise known as Forty-First street, in the city of Birmingham, Ala., also on or across Fifth Avenue North near the point where Spring street or Forty-First street and said Fifth avenue intersects, in front of the home of the plaintiff, No. 4003 Fifth Avenue North, in the city of Birmingham, Ala., in such a manner as not to divert rainwater in large quantities from its natural flow and thereby causes the same to overflow the property of the plaintiff hereinafter described in times of rainfall; that this duty the defendant on the date aforesaid negligently failed to perform, and by reason of the failure of the defendant to exercise reasonable care, diligence, and skill in so constructing and maintaining said drain or sewer as not to divert rainwater in large quantiff hereinafter described in times of rainfall, the same to overflow the property of the plaintities from its natural flow, and thereby cause the plaintiff was damaged in this:

"This on or about December 24, 1921, rainwater ran into and near said drain or sewer on Fifth Avenue North, in front of the property of the plaintiff in large quantities, and was thereby diverted from its natural course and cast in large bodies or quantities on the following described property situated in the city of Birmingham, Jefferson county, Ala., to wit: Lot fronting 30 feet on the southern side of the Fifth avenue macadamized road in section 29, township 17, range 2 west; particularly described as beginning at a point on the southern side of said road 220 feet east of the intersection of said line with the west line of said section 29, and continue thence east along the southern line of said road 30 feet; thence south at right angles 140 feet; thence west at right angles 30 feet; thence north at right angles 140 feet to the point of beginning; and being the east 30 feet of the lot conveyed to M. S. Mashead by King Land & Improvement Company on the 5th day of August, 1907-of which property plaintiff was seized and possessed, whereby the fence located on the property of the plaintiff on the western side thereof was torn down or washed down and destroyed; large quantities of dirt or earth was washed off of said lot, thereby destroying the western surface of said premises, and washing out such large portions of said surface as to greatly weaken the pillars or other support of the house as to cause the house to sink or sag to such an extent in certain parts as to cause the house to crack and to be otherwise damaged; that by reason of said overflow and the condition of the property caused by said overflow the plaintiff has been greatly inconvenienced and annoyed, her home made a less desirable place in which to live; that by reason of said overflow and the condition of the property caused by said overflow the plaintiff has been made sick and put to great expense in paying doctor's bills, and in buying medicine, and that the condition of her premises has been and is otherwise hurtful to the personal well-being of the plaintiff; that the negligence aforesaid of the defendant was the proximate cause of the injuries and damage to the plaintiff.

"And plaintiff avers that said city had notice that said drain or sewer was negligently constructed and maintained in such a manner as to cause large quantities of rainwater to be diverted from its natural course and to overflow said property of the plaintiff in time of rainfall. And plaintiff avers that more than 10 days before the commencement of this suit and within 90 days from the receipt of the injuries herein complained of she filed with the city clerk of the city of Birmingham, Ala., a municipal corporation, a sworn statement, stating that she was damaged, and further stating substantially the manner in which the damage claimed in this suit was sustained and the day, the time, and place thereof, and the place where the wrong complained of occurred and further stating with substantial accuracy the nature and character of the injuries received and the damages claimed by the plaintiff, and the street and house number where the plaintiff resided at the time of filing the statement."

To the complaint defendant demurred on these grounds:

"(1) For that the averments of said count fail to set forth a cause of action against the defendant.

"(2) For that the averments of said count fail to allege the breach of any duty owing by the defendant to the plaintiff.

"(3) For aught that appears from the averments of said count plaintiff bought the property alleged to have been damaged knowing full well the then condition of said sewer.

"(4) For aught that appears from the averments of said count the defendant has not performed any act relative to the said drain or sewer since plaintiff purchased her said property.

"(5) For that the averments of said count set forth a misjoinder of causes of action therein in this: That damages are claimed as to real estate and also to the health of the plaintiff.

"(6) For aught that appears from the averments of said count the property of the plaintiff at the time complained of received the flow of water which it would have received under natural drainage conditions.

"(7) For that it fails to appear from the averments of said count wherein the city negligently constructed or maintained said drain or sewer, except from the conclusion of the pleader unsupported by sufficient facts.

"(8) For that it fails to appear from the averments of said count, except by way of conclusion of the pleader, and sufficient facts are not alleged in support thereof, that more than 10 days before the institution of this suit, and within 90 days from the time plaintiff suffered her alleged personal damages, that she filed with the clerk of the defendant or its corresponding officer a sworn statement of her damages, and stating the negligence of the defendant causing the same, as is required by law as a condition precedent to the institution of this suit."

W. J Wynn and W. M. Woodall, both of...