City of Montgomery v. Stephens

Citation14 Ala.App. 274,69 So. 970
Decision Date19 October 1915
Docket Number175
PartiesCITY OF MONTGOMERY v. STEPHENS.
CourtAlabama Court of Appeals

Appeal from Circuit Court, Montgomery County; W.W. Pearson, Judge.

Action by J.B. Stephens against the City of Montgomery for negligently maintaining a ditch. Judgment for plaintiff, and defendant appeals. Affirmed.

The cause went to the jury on counts 9, 10, 11, 12, 15, 16, 17 and 18. Count 9 claims damages for the negligent failure of defendant to exercise reasonable care, skill, and diligence in the construction of a ditch or drain across or through plaintiff's property, by negligently constructing a ditch or drain which was insufficient for the free passage of water which flowed therein in the time of heavy rainfall, and by reason of said failure the ditch overflowed to plaintiff's damage. 10 is the same as 9, except that it is more definite in the description of the property. 11 is the same as 9 and 10, with the additional averment that defendant had notice of this condition and failed to remedy it. 12, same as 11. 15 alleges the construction and maintaining of a ditch or drain which was part of the drainage system of the defendant municipality across or through plaintiff's premises (describing the premises and the uses to which they were put), and that said defendant in the construction of said ditch or drain failed to exercise reasonable care, skill and diligence in this: Here follows various reasons why the ditch was insufficient. And as a proximate result thereof large bodies of water, which would have been carried off if said ditch had been properly constructed, overflowed said ditch, broke away the banks thereof, and on divers occasions (naming them) plaintiff suffered the following injury to his property, etc. 16, same as 15, except that it gives a fuller description of the property. 17 claims damages for the municipality's negligence in allowing a ditch or drain across plaintiff's premises (here follows description thereof) which said ditch or drain it was its legally bound duty to keep in a proper condition, to be and remain in a defective condition, of which said defective condition defendant had notice, and through its negligence said ditch or drain broke over its banks, etc., causing the damages above set out. 18 same as 17.

The demurrers raise the proposition that the counts show that the city of Montgomery is a municipal corporation, and that the property alleged to have been damaged is located outside of the municipality, and no authority on the part of the city to construct the drain or ditch is shown, nor is any duty on the part of the city to construct the ditch or drain which is alleged to have caused the injury, and that it appears from the count that the property alleged to have been damaged is without the corporate limits, and that the cause of the injury was without the corporate limits of the city, and that no negligence was shown on the part of defendant in the construction of said ditch or drain, and ultra vires.

The following charges were refused to defendant:

(24) The jury is charged that if they believe from the evidence that Stephens' property was in no worse condition after the rain of March 14, 1912, than prior to the construction of the ditch by the city, there can be no recovery.
(25) Same as to the rain of April 14, 1912.
(27) The jury is charged that if they believe from the evidence that the ditch or drain was constructed through plaintiff's property for the betterment of the health and for the welfare of the public, there can be no recovery in this case.
(37) The jury is charged that there is no liability upon defendant, and plaintiff cannot recover if they believe from the evidence that defendant exercised mature deliberation in locating and designing the ditch or drain.
(38) There is no liability upon defendant in this suit, if defendant acted in good faith and within their authority in adopting the plan for a ditch or drain.

Ed S Watts, of Montgomery, for appellant.

Hill, Hill, Whiting & Stern, of Montgomery, for appellee.

BROWN, J.

Ordinarily negligence is not an essential element in an action to recover damages resulting from a nuisance. The reason upon which this rule vests is found in the maxim, "Sic utere tuo ut alienum non laedas," and until injurious consequences result from the nuisance the cause of action does not arise. Alabama Western Ry. Co. v. Wilson, 1 Ala.App. 306, 55 So. 932; Yolande Coal Co. v Pierce, 68 So. 563.

Whether the general rule applies in suits against municipal corporations, and, if so, whether section 1273 of the Code wrought a change in the law as it existed previous to the adoption of the Code, is not here important, as the several counts of the complaint on which the case was submitted to the jury allege negligence on the part of the defendant in one form or another. The plaintiff having alleged negligence, the law imposes upon him the burden of proving the averment, although it may not have been essential to the cause of action. Rich v. McInerny, 103 Ala. 345, 15 So. 663, 49 Am.St.Rep. 32.

The negligence is not in terms imputed to an "agent," "officer," or "employé" of the defendant but of necessity the corporation could only act or fail to act by some officer, agent, or employé. Code, § 1273; Louisville & Nashville R.R. Co. v. Dawson, 68 So. 674; Sullivan v. Sullivan Timber Co., 103 Ala. 372, 15 So. 941, 25 L.R.A. 543. And the averment that the "defendant" was guilty of negligence required proof that some officer, agent, or employé, while "engaged in work therefor and acting in the line of his duty," was guilty of...

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9 cases
  • Atlantic Coast Line R. Co. v. Kelly
    • United States
    • Alabama Court of Appeals
    • January 22, 1918
    ... ... [77 So. 973] ... [16 ... Ala.App. 361] John R. Tyson, of Montgomery, and Riley & ... Carmichael, of Elba, for appellant ... W.W ... Sanders, of Elba, for ... this question came before that court in February, 1910, in ... the case of Ellen Feeley v. City of Meltrose, Margaret ... Stevens v. Same, Walter L. Shepard Co. v. Same, 205 ... Mass. 329, 91 ... of City of Montgomery v. Stephens, 14 Ala.App. 274, ... 69 So. 971: ... "Ordinarily negligence is not an essential element in an ... ...
  • City of Birmingham v. Greer
    • United States
    • Alabama Supreme Court
    • January 16, 1930
    ... ... St. Rep. 922; ... Birmingham v. Crane, 175 Ala. 90, 56 So. 723; ... Birmingham v. Kircus, 19 Ala. App. 614, 99 So. 780; ... Montgomery v. Gilmer, 33 Ala. 116, 70 Am. Dec. 562; ... Montgomery v. Stephens, 14 Ala. App. 274, 69 So ... 970; Ginzler v. Birmingham, 6 Ala. App. 666, 60 ... ...
  • Nashville, C. & St. L. Ry. v. Beard
    • United States
    • Alabama Court of Appeals
    • January 9, 1917
    ...manner as not to injure that of another, embodied in the maxim "Sic utere alienum non læaedas." 9 Coke, 59; 1 Bl.Com. 306; City of Montgomery v. Stephens, 69 So. 970; Western Ry. Co. v. Wilson, 1 Ala.App. 306, 55 So. 932; Yolande Coal Co. v. Pierce, 12 Ala.App. 431, 68 So. 563; Lindsey v. S......
  • City of Birmingham v. Norwood
    • United States
    • Alabama Supreme Court
    • January 25, 1930
    ... ... whether the action is under (a) or (b). Some of these were ... before and some after the enactment of section 2029 ... Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4, 6; ... Birmingham v. Scott, supra; Birmingham v. Poole, 169 ... Ala. 177, 52 So. 937; Ensley v. Smith, 165 ... Goodgame v. L. & N. R. R. Co., 218 Ala. 507, ... 119 So. 218; Ala. Power Co. v. Edwards, 219 Ala ... 162, 121 So. 543; Montgomery v. Stephens, 14 Ala ... App. 274, 69 So. 970 ... Whether ... under the express terms of section 2029, a charge under (b) ... should contain a ... ...
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