Ex parte City of Birmingham

• Decision Date: 26 March 1925
• Docket Number: 6 Div. 346
• Citation: 212 Ala. 552,103 So. 599
• Parties: Ex parte CITY OF BIRMINGHAM. v. INGRAM. CITY OF BIRMINGHAM
• Court: Alabama Supreme Court

103 So. 599

212 Ala. 552

Ex parte CITY OF BIRMINGHAM.

CITY OF BIRMINGHAM v. INGRAM.

6 Div. 346

Supreme Court of Alabama

March 26, 1925

Certiorari to Court of Appeals.

Petition of the City of Birmingham for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of City of Birmingham v Ingram, 103 So. 595. Writ denied.

W.J Wynn and W.M. Woodall, both of Birmingham, for petitioner.

Harsh Harsh & Harsh, of Birmingham, opposed.

SAYRE J.

Two objections are taken to the opinion of the Court of Appeals in this case:

1. As stated by the Court of Appeals, the third count of the complaint alleged that the nuisance complained of, a pile of garbage, trash, and débris dumped and maintained by defendant, caused special damage, in that "his residence was rendered less pleasant and habitable as a place of residence for plaintiff and his family." The Court of Appeals held this to be the allegation of injury to plaintiff's interest in his residence and so unaffected by the statute which requires the filing of claims for personal injuries within ninety days. This decision is said to be at variance with the ruling of this court in Birmingham v. Prickett, 207 Ala. 79, 92 So. 7. But the count considered in that case, in addition to the allegation quoted above, alleged that--

"Plaintiff at his said residence, and within the curtilage thereof, was compelled to inhale unpleasant, vile offensive and unhealthy odors, gases and smoke from said garbage, trash or débris, and was made sick," etc.

The Court of Appeals in this case has shown that "the court" (meaning this court) "in the Prickett Case held that the complaint claimed damages for personal injuries, but did not hold that it did not also claim damages for injury to the home or residence of the plaintiff," and, accordingly, held that the count claimed damages for injuries to the residence and allowed a recovery on that theory. In this we think the Court of Appeals ruled correctly.

2. In the second place, it is insisted that the trial court erred in refusing charge 10 requested by defendant, which is shown in the report of this case. On this subject the Court of Appeals had nothing to say; but the opinion of the court states facts which, in connection with the right record enables this court to say that there was no error in the action of the trial court. It was alleged in the complaint that the nuisance...