City of Eufaula v. Simmons

• Decision Date: 02 March 1889
• Citation: 6 So. 47,86 Ala. 515
• Parties: CITY OF EUFAULA v. SIMMONS.
• Court: Alabama Supreme Court

6 So. 47

86 Ala. 515

CITY OF EUFAULA v. SIMMONS.

Supreme Court of Alabama

March 2, 1889

Appeal from circuit court, Barbour county; J. M. CARMICHAEL, Judge.

Action by Mrs. Sarah Simmons against the city of Eufaula, for damages to property by the overflow of sewers and ditches which the corporate authorities had constructed and dug in the streets for the purpose of improving and draining them. Plaintiff offered to prove by Dr. Copeland, who had been her family physician for several years, "that the overflow of rain-water on her lot tended to produce sickness there that several members of her family had been sick with malarial troubles since moving on said lot, and that they had never had such sickness while residing in another portion of the city." The court admitted the evidence, against objection and exception. Plaintiff's husband testified over objection and exception, "that the rent of said house and lot, if it did not overflow, would be worth from $15 to $20 per month, but, overflowing, as it did, it was not worth more than $7.50 to $10 per month." The following instructions were excepted to: "(1) If the jury are satisfied from the evidence that plaintiff's house and lot are less valuable as a dwelling-place for herself and family on account of the flow of the water upon it, and that said overflow of water was caused by the wrong of the defendant, then the jury can assess to her, as damages, the difference in the value of the lot as a dwelling-place so overflowed and what it would be worth as a dwelling-place if not overflowed. (2) If the jury believe from the evidence that the defendant was so grossly negligent as to evidence an entire want of care, and to create the presumption in a reasonable mind that, being cognizant of the probable consequences of its negligence to plaintiff's property it was indifferent to it, then such vindictive damages may be found as, in the enlightened conscience of the jury, are right. (3) If the jury believe from the evidence that the defendant, by its corporate authorities, constructed sewers and dug ditches, by which a great volume of water not naturally flowing thereon was collected and discharged on plaintiff's premises, within twelve months before the bringing of this action, and that said water stood upon said premises, then the jury can look at all the facts and circumstances of the case, and assess such damages for the plaintiff as in their opinion she has sustained." Defendant appeals.

G. L. Comer, for appellant.

H. D. Clayton, Jr., and P. B. McKenzie, for appellee.

SOMERVILLE J.

1. If the municipal authorities of the city of Eufaula, the defendant in this action, in the construction...