Gulf States Steel Co. v. Beveridge

• Decision Date: 03 May 1923
• Docket Number: 6 Div. 747.
• Citation: 96 So. 587,209 Ala. 473
• Parties: GULF STATES STEEL CO. v. BEVERIDGE.
• Court: Alabama Supreme Court

96 So. 587

209 Ala. 473

GULF STATES STEEL CO. v. BEVERIDGE.

6 Div. 747.

Supreme Court of Alabama

May 3, 1923

Rehearing Denied May 17, 1923.

Appeal from Circuit Court, Jefferson County; J. B. Aird, Judge.

Action for damages by R. P. Beveridge against the Gulf States Steel Company. From a judgment for plaintiff, defendant appeals. Reversed conditionally.

Percy Benners & Burr and Salem Ford, all of Birmingham, for appellant.

Beddow & Oberdorfer, of Birmingham, for appellee.

GARDNER J.

The Gulf States Steel Company in September, 1920, owned and operated a coal mine at Sayre, in Jefferson county. The mining camp was located near the public road known as the Bankhead highway; from this highway there was a road which led through defendant's mining camp to what is known as the Partridge crossroads, and also to the Warrior river. A strike had been called of the union miners to become effective September 7, 1920; and on that day the servants or agents of the Gulf States Steel Company built a fence and erected a gate across this road which leads from the Bankhead highway through the company's mining camp, those in charge of this mine having received rumors to the effect that a number of union miners would march into the camp and hold a meeting, and this they were instructed to prevent. To that end they notified the office of the sheriff of Jefferson county, asking for assistance, and two deputies were sent from that office to the camp. The company had a lock placed on the gate, and five or six armed men were stationed there. The deputies from the sheriff's office also stood guard at this point.

The rumors as to the intended meeting of the union miners proved well founded, and on September 11, 1920, a number of these miners, variously estimated from about 75 to 200, marched down the Bankhead highway and up this road to the gate constructed by the Gulf States Steel Company; they were accompanied by a band.

R. P Beveridge was a taxi driver, operating a taxi in that vicinity. According to some of the witnesses his car was about in the center of the crowd, but according to his contention he was in front. He testified that he started with two of the men, who were in his car at this time, for the purpose of carrying them to a fishing camp which is reached by this road, and only a few miles beyond the company's mine, and that he picked up two or three others along the way. Beveridge was not a miner nor a member of the union, and testified that neither he nor his two passengers were on the way to attend any meeting, and that their journey had no connection therewith; that these two passengers had agreed to pay him $8 to carry them to the fishing camp, and when he reached the gate he was refused admittance. Beveridge insists that he told the company's guards that he wanted to go through in order to reach the fishing camp; but some of the guards testifying state that he said he merely wanted to go up into the camp. All were denied admission except one taxi carrying employés of the company. Talks were made to the crowd by the deputy sheriffs, and probably by one of the guards, the deputies telling them that they had been instructed by the board of revenue and the sheriff that this was a private road, and that they could not go through. There was no disorder or evidence of violence of any character. The crowd dispersed, and the meeting was subsequently held at the bridge on the Bankhead highway, not far distant. Beveridge being refused admission insists that he was thereby deprived of carrying his passengers to the fishing camp, for which he was to be paid the sum of $8, which he consequently did not receive; and he brings this suit against the Gulf States Steel Company, seeking damages, both actual and punitive, for having wantonly and wrongfully obstructed the public road, resulting in a judgment for $2,500, from which the defendant has prosecuted this appeal.

It is a well understood general rule that a private action for a public nuisance is maintainable by one who suffers therefrom some particular loss or damage beyond that suffered by him in common with others affected by the nuisance. The difficulty arises from the application of the law to the facts as to whether or not special or particular damage has been shown so as to authorize the suit.

The complaint shows by way of special damage that the plaintiff in this action was prevented from delivering two of his passengers to their intended destination, for which they had agreed to pay him the sum of $8, and that thereby he lost this amount. Much has been written upon the subject as to whether or not plaintiffs in actions of this character have suffered damages or some particular loss beyond that suffered by him in common with all others affected by the nuisance. We have read many of these authorities in connection with the insistence of counsel for appellant, cited in brief, and are persuaded that the facts alleged in this complaint, and in this respect sustained by the proof, bring the plaintiff's cause within the rule authorizing the suit. Tutwiler Coal, Coke & Iron Co. v. Nail, 141 Ala. 374, 37 So. 634; A. G. S. R. R. v. Barclay, 178 Ala. 124, 59 So. 169; S. & N. Ala. R. R. v. Schauffler, 189 Ala. 58, 66 So. 502; Walls v. Smith & Co., 167 Ala. 138, 52 So. 320, 140 Am. St. Rep. 24; Knowles v. Penn. R. R., 175 Pa. 623, 34 A. 974, 52 Am. St. Rep. 860; Milarkey v. Foster, 6 Or. 378, 25 Am. Rep. 531; Dudley v. Kennedy, 63 Me. 465. In the note to Milarkey v. Foster, supra, will be found a number of cases in point.

In Walls v. Smith & Co., supra, this court held the damages there sought were not recoverable upon the ground that they were speculative and remote. However, that reason could have no application here where the plaintiff was in the performance of an actual contract of carriage of passengers for a fixed sum, of which he was deprived. The opinion in that case notes some authorities which apply to such a situation, and support the conclusion here reached. The demurrer was properly overruled.

It is insisted the defendant is entitled to the affirmative charge upon the theory the plaintiff had not sufficiently met the burden of proof to establish that the road which was obstructed was a public road. Plaintiff offered the proof of numerous witnesses to the effect that this road had been used by the public uninterruptedly for more than twenty years without objection, and, further, that the road had been worked and kept up by the county authorities. One Lollar, witness for the plaintiff, testified that he worked that road more than 20 years ago as one of the county "hands," and that the county had in fact operated and worked the road for at least 22 years.

In Locklin v. Tucker, 208 Ala. 155, 93 So. 896, this court reviewed numerous cases and pointed out some apparent conflicts in our authorities, touching the question of presumption arising from the use by the public uninterruptedly for a period of 20 years or more without objection. It is unnecessary to state further in respect to plaintiff's proof as to this particular road than to say that it more than meets the requirements of the rule established by the foregoing authority, and that under the proof the jury were justified in finding that the road in question was a public road.

Some other assignments of error relate to the action of the court in...