Ginzler v. City of Birmingham

• Decision Date: 16 January 1913
• Citation: 6 Ala.App. 666,60 So. 976
• Parties: GINZLER v. CITY OF BIRMINGHAM.
• Court: Alabama Court of Appeals

60 So. 976

6 Ala.App. 666

GINZLER v. CITY OF BIRMINGHAM.

Court of Appeals of Alabama

January 16, 1913

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Action by Mrs. Lula Ginzler against the City of Birmingham for damages to realty. From a judgment granting defendant a new trial, plaintiff appeals. Affirmed.

The following is count 2:

"Plaintiff claims of defendant, a municipal corporation, the sum of $2,000 as damages, for that, to wit, on or about the 1st day of January, 1910, and before and at the time of the occurrence herein complained of, the plaintiff was, and ever since has been, possessed of a certain lot or tract of land located in the northeast corner of Twenty-First avenue and Twenty-Third street [here follows description], upon which plaintiff resided and had a dwelling house, yard garden, outhouses, and other improvements, and used the same as a homestead; that during the months of June, July and August, 1910, and on divers other times and dates between the 1st day of January, 1910, and the bringing of this suit, the defendant, by its agents, servants, or employés, acting within the line or scope of their employment, wrongfully diverted large quantities of water out of Twenty-Third street by means of a defective ditch or storm sewer in said Twenty-Third street, which was negligently constructed or negligently maintained in said street by the defendant, and when surface water collected thereon, which it did on divers occasions during the months of June, July, and August, 1910, said ditch or storm sewer was insufficient to carry the water, and was so negligently constructed that the water therefrom overflowed in and upon plaintiff's said lot, yard, and garden, and the water mud, and filth from said ditch or storm sewer settled and stagnated thereon and therein, and rendered plaintiff's said premises physically uncomfortable and of less value, and injured plaintiff's health while residing thereon, to her great damage," etc.

Allen & Bell, of Birmingham, for appellant.

M. M. Ullman and Romaine Boyd, both of Birmingham, for appellee.

PELHAM, J.

The case was submitted to the jury on the second count of the plaintiff's complaint, and resulted in a verdict in favor of the plaintiff for $900. The defendant moved for a new trial, and this motion was granted by the court, and this action of the court in setting aside the verdict and granting appellee a new trial is assigned as error.

The motion sets forth many grounds as reasons for setting aside the verdict and granting a new trial; but counsel for appellant and appellee both seem to agree on one thing, and but one thing, in their briefs filed, and that is that the real, substantial question presented to the court for review on this appeal is whether the court, in the trial of the case, proceeded and acted on the proper rule appertaining to the measure of recoverable damages, or departed in its rulings on the evidence and instructions to the jury in this particular, and committed error in permitting a recovery based on an improper measure of damages, under the allegations of the plaintiff's complaint.

The second count of the complaint, as we read it (the reporter will set out this count), is not a claim for permanent injury to the realty directly and necessarily resulting from the construction of the sewer as an injurious construction, but a claim for the injurious consequences resulting from and ascribed to an overflow of water produced by the improper or negligent construction of a storm sewer or ditch, the construction of which did not, of itself, constitute a wrong affording a cause of action. The act complained of is not the construction of the sewer, but the harmful consequences subsequently resulting from it. The complaint predicates a recovery on a consequential injury directly resulting from wrongfully diverting large quantities of water on the plaintiff's land on divers occasions, and avers that this was occasioned in consequence of the negligently constructed or negligently maintained ditch or storm sewer. In other words, the injury complained of is not attributed directly to the construction of the storm sewer without an intervening cause. Nor is the character of the injury complained of necessarily of a permanent nature, not abatable or not remediable; and therefore the whole damage, having reference to the decreased value of the fee, could not be properly ascertained or determined. We do not think that the complaint counts on a permanent injury in general to the land, or that it attributes the damages suffered to the permanence of the construction complained of, but specifically claims the damages suffered from the immediate consequences of the overflows specified and counted on. The gist of the action is a specific claim for damages for maintaining a nuisance; and the recovery, under this count could only be for the loss or injury complained of and counted on that had accrued at the time the action commenced.

"In cases of damage by nuisance, it is considered that the injurious consequences resulting from the nuisance, rather than the act which produces the nuisance, is the cause of action, and hence it is held that the cause of action does not arise until harmful consequences occur, and damages are estimated to the time of bringing...