City of Jasper v. Barton

• Decision Date: 01 June 1911
• Citation: 1 Ala.App. 472,56 So. 42
• Parties: CITY OF JASPER v. BARTON.
• Court: Alabama Court of Appeals

56 So. 42

1 Ala.App. 472

CITY OF JASPER v. BARTON.

Court of Appeals of Alabama

June 1, 1911

Appeal from Law and Equity Court, Walker County; T. L. Sowell Judge.

Action by Mrs. Millie Barton against the City of Jasper. Judgment for plaintiff, and defendant appeals. Affirmed.

F. A Gamble and Bankhead & Bankhead, for appellant.

J. D. Acuff, for appellee.

WALKER P.J.

When a municipal corporation, in the construction of embankments and culverts and digging ditches, etc., in the improvement of its streets, causes a large quantity of water to be diverted and to overflow a lot in destructive volume, it is liable in damages to the owner of such lot, whether the work was done negligently or not. City of Eufaula v. Simmons, 86 Ala. 515, 6 So. 47; Arndt v. City of Cullman, 132 Ala. 540, 31 So. 478, 90 Am. St. Rep. 922. This proposition disposes of the grounds of the demurrer to the complaint based upon its failure to allege that there was negligence in the construction of the embankment and culverts to which the injury complained of was attributed.

The plaintiff, in an action counting on such a defect in a public work, must allege and prove that the municipal authorities had notice, express or implied, of the alleged defect. Arndt v. City of Cullman, 132 Ala. 540, 31 So. 478, 90 Am. St. Rep. 922. By the complaint in the case at bar the injury to the plaintiff's property is attributed to the condition of the embankment and culverts mentioned as the same were originally constructed by the defendant itself. Notice to the municipality is shown when it is averred that the defect complained of inhered in its own original construction. Nothing material would have been added to the complaint by an averment in express terms that the defendant had notice of what was done by itself. City of Austin v. Ritz, 72 Tex. 391, 9 S.W. 884; Poole v. Jackson, 93 Tenn. 62, 23 S.W. 57; Evans v. Iowa City, 125 Iowa, 202, 100 N.W. 1112. There was no merit in the grounds of the demurrer to the complaint suggesting its failure to aver that the defendant had knowledge or notice of the defects complained of.

A demurrer directed against a complaint as a whole cannot be sustained on a ground which refers only to a part of the complaint which claims special damages. The complaint stating a cause of action for the injury to the plaintiff's lot resulting from water diverted and thrown back upon it by the embankment constructed by the defendant, a question as to the sufficiency of the averment of special damage to the plaintiff's dwelling house and outhouses was not properly presented by the demurrer to the complaint as a whole.

It is insisted that the trial court was in error in admitting in evidence, over the objection of the defendant, the written application or claim for payment made by the plaintiff on the defendant before the institution of the suit. It is urged that the presentation of that instrument did not constitute a compliance with the provision of section 44 of the charter of the city of Jasper, "that no suit shall be maintained against the city upon any claim or demand for money until application shall have been made to the board for payment thereof, and the said application refused in whole or in part, or the board fail at their next regular meeting to act thereon." Local Acts 1900-01, p. 442. It is true that under such a provision the claim sued on must be the same as the one presented, and that an averment in a complaint that the claim sued on had been presented before the bringing of the suit is not sustained by proof of the presentation of a claim for a different amount. Bland v City of Mobile, 142 Ala. 142, 37 So. 843. But it is also...