Hodges v. Town of Drew

• Decision Date: 11 February 1935
• Docket Number: 31514
• Citation: 159 So. 298,172 Miss. 668
• Court: Mississippi Supreme Court
• Parties: HODGES et ux. v. TOWN OF DREW

159 So. 298

172 Miss. 668

HODGES et ux. v. TOWN OF DREW

No. 31514

Supreme Court of Mississippi

February 11, 1935

Division B

Suggestion Of Error Overruled March 25, 1935.

APPEAL from circuit court of Sunflower county HON. S. F. DAVIS Judge.

Action by T. J. Hodges and wife against the Town of Drew. From an order directing verdict for defendant and judgment entered thereon, plaintiffs appeal. Reversed and remanded.

Reversed and remanded.

B. B. Allen, of Indianola, for appellant.

The plaintiff showed by uncontradicted testimony that as a result of a nuisance maintained by the city on account of the improper construction or improper maintenance of the sewerage system and septic tank, that he sustained special damages to his person and to his property.

Green v. Lake, 54 Miss. 540; Pearman v. Wiggins et al., 103 Miss. 4.

A private individual may have relief against public nuisance and is entitled to proceed in equity for the abatement of, or an injunction against, the nuisance, or to maintain an action at law for damages on account of the special injury which he has received.

46 C. J. 729; Green v. Lake, 54 Miss. 540; 7 Words & Phrases, Third Series; Smith v. Boston, 7 Cush. 254; Nesbitt v. City of Greenville, 69 Miss. 22; Cauthen v. City of Canton, 144 Miss. 471; City of Vicksburg v. Richardson, 90 Miss. 1, 42 So. 234; City of Vicksburg v. Porterfield, 164 Miss. 581; Thompson v. Winona, 96 Miss. 591; Semple v. Mayor & Board of Aldermen of Vicksburg, 62 Miss. 63; 8 McQuillan on Municipal Corporation, page 8292, sections 2695, 2696, 2699, and 2706; Henerson v. Robinson, 152 Ky. 245, 153 S.W. 224; Taylor v. Baltimore, 99 A. 900, L.R.A. 1917C, 1046.

A municipality creating and maintaining a nuisance is liable to any person suffering special injury therefrom irrespective of whether the misfeasance or nonfeasance causing the nuisance also constituted negligence, and its liability cannot be avoided on the ground that it was exercising a governmental function.

Hoffman v. City of Bristol, 75 A.L.R. 1191; Melker v. New York, 16, L.R.A. (N.S.) 621; 75 A.L.R. 1196; Macon v. Roy, 34 Ga.App. 603, 130 S.E. 700; McQuillan on Municipal Corporations, sec. 1451.

If a public nuisance causes injury to an individual different from that to public generally, substantial in nature, that individual may have a civil remedy.

Deering v. Martin, 116 So. 54, 95 Fla. 224; Biscayne Co. v. Martin, 116 So. 66, 95 Fla. 259; Section 2391, Code of 1930; Leflore County v. Allen, 80 Miss. 298, 31 So. 815; Crawford v. Town of D'Lo, 119 Miss. 28, 80 So. 377.

There was no misjoinder of the parties plaintiff in the lower court, because Mr. and Mrs. Hodges, the joint plaintiffs, each suffered special damages from the same negligent act of the defendant and as such are entitled to maintain this suit jointly against the Town of Drew.

47 C. J. 55.

J. O. Eastland, of Ruleville, for appellants.

The authorities to sustain an action of this kind are numerous, not only in Mississippi, but practically all over the United States.

20 R. C. L. 425, par. 41; Poston v. L. E. Craw, 15, U. S. L.Ed. 118; Richardson v. Boston, 16 U.S. 625, 24 How. 188; 43 C. J., page 956, sec. 1734, page 1148, sec. 1907, and page 1149, sec. 1908.

Municipal corporations are to be considered as artificial persons owning and managing property. In this last capacity, they are chargeable with all of the duties and obligations of other property owners and must respond for creating nuisances under the same rules which govern the responsibility of mature persons.

2 Cooley on Torts, page 1302; City of Vicksburg v. Richardson, 90 Miss. 1.

A municipality cannot pollute a stream or a watercourse by emptying its sewage therein so as to constitute a nuisance by causing the stream to give off foul and noxious odors, and which deposits sewerage on property lower down the stream and which causes odors that prevent riparian owners and those living near the place the sewerage is discharged from cultivating lands contiguous to the stream and which molest them and deprive them of the use and enjoyment and comfortable occupancy of their homes and property.

Bird v. City of Grand Rapids, 50 L.R.A. (N.S.) 473 Thompson v. City of Winona, 96 Miss. 591; Hinds v. City of Nevada, 32 L.R.A. (N.S.) 797; Taylor v. City of Baltimore, L.R.A. 1917C, page 1046; City of Mansfield v. Brister, 10 L.R.A. (N.S.) 806; McLaughlin v. City of Hope, 47 L.R.A. (N.S.) 137; McDaniel v. City of Cherryville, 50 L.R.A. (N.S.) 388; City of Hampton v. Watson, L.R.A. 1916F, 189; Joyce v. Village of Janesville, L.R.A. 1916D, 426; Parish v. Town of Yorkville, L.R.A. 1915A, 282; Green v. Lake, 54 Miss. 50; 2 Cooley on Torts, page 1299.

The appellant was deprived of the comfortable enjoyment of his home and this alone is such special damage peculiar to himself as will sustain an action for the creation or maintenance of a nuisance where foul odors invade his home.

Lynn v. San Luis Obispo, 42 P. 437; Fisher v. Zum. Walt, 61 P. 82; Harlz v. Merrill Brick Co., 48 N.W. 1000; Millhiser v. Willard, 65 N.W. 325; Town of Union v. Rivers, 128 So. 586.

The elements of special damages in the Rivers case, 128 So. 586, were identical to the damages proven in the present case.

46 C. J., page 737, sec. 318 1/2 and page 738, sec. 318 1/3.

A person in legal possession of the premises, may recover damages for injury caused by a nuisance to the health or person of himself or of other occupants who are members of his family.

46 C. J. 738, sec. 318 1/4; Prisby v. Benjamin, 169 N.Y. 377.

Persons jointly effected by a tort must join in an action to recover for the injury.

20 R. C. L. 675, par. 14; 47 C. J. 55; Cleveland v. Grand Trunk R. R. Co., 42 Vt. 449; Gulf R. R. Co. v. City Service Co., 281 F. 214; Russell v. Stocking, 8 Conn. 236.

Taylor & Marsalis, of Drew, and Moody & Johnson, of Indianola, for appellee.

Without objection by the plaintiff, a peremptory instruction was given for the defendant, upon which a judgment was entered without objection by the plaintiff. No motion for a new trial was filed by the plaintiff, and, of course, there is no order overruling the same.

Under our system of practice, a party to an action at law may except specially to any action of the trial court, or he may except generally by filing a motion for a new trial, and incorporate therein all exceptions. If a motion for a new trial is filed and overruled it is not necessary for a party to the action to except to instructions given or refused, but if a motion for a new trial is not filed and overruled, it is necessary that exceptions or objections be taken to the action of the court in giving and refusing instructions.

Hutch. Dig. 885, art. 7, sec. 1; Scott v. State, 31 Miss. 473, 477; Memphis & Charleston R. R. Co. v. Chastine, 54 Miss. 503, 507-8.

Of course exceptions can be taken otherwise than by a motion for a new trial. But unless taken otherwise, or by a motion for a new trial, there are no exceptions on which error can be assigned or predicated.

R. R. Co. v. Chastine, 54 Miss. 503; Field v. Weir, 28 Miss. 67; Watson v. Dickens, 12 S. & M. 608; Mayer v. McLure, 36 Miss. 397, 79 Am. Dec. 190; Scott v. State, 31 Miss. 473; Barney v. Scherling, 40 Miss. 320; Bourland v. Board of Supervisors, 60 Miss. 996, 1001-2; Temple v. Hammock, 52 Miss. 360; Smokey v. Johnson, 4 So. 788-9; State v. Spengler, 74 Miss. 133, 20 So. 879-80; McCorkle v. I. C. R. R. Co., 57 So. 419; Evans v. Clark, 24 Miss. 532; Southern Ry. Co. v. Jackson, 49 So. 738.

It is submitted that the error, if any, in granting the peremptory instructions cannot be considered by this court.

Love v. Wilson, No. 31134.

A private action, either at law or in equity, will not lie, unless the plaintiff has sustained some special damage.

Green v. Lake, 54 Miss. 450-545; 43 C. J. 1139; Metz v. Asheville, 22 L.R.A. (N.S.) 940; Hines v. City of Rocky Mount, L.R.A. 1915C, 751.

In support of the contention that a municipality of this state, in the construction and maintenance of a sewerage system, discharges a public function, or, otherwise stated, exercises a governmental function, attention is directed to Sections 2396 and 2414 of the Code of 1930, which is the same law as that theretofore in force. By the former section a municipality is empowered to make regulations to secure the general health of the municipality, and to prevent, remove and abate nuisances, whereas, by the latter section, it is given power to exercise full jurisdiction in the matter of sewers and construct the same.

Hartman v. May, 151 So. 736; McLeod v. State, 154 Miss. 468, 122 So. 737, 63 A.L.R. 1161; Stephens v. Drainage District, 123 Miss. 884.

If a public corporation created in invitum for the purpose of discharging a public function is not liable for the negligence of its officers, agents and employees, it necessarily follows that a municipal corporation, in the discharge of such a public function, is not liable for such negligence.

City of Hattiesburg v. Gigor, 118 Miss. 676; 19 R. C. L. 1117.

In actions against municipalities by third parties for the negligence of its firemen, the municipality has been held not liable for the reason that in maintaining and operating a fire department the city was performing a governmental function.

Cunningham v. City of Seattle, 42 Wash. 134, 84 P. 641, 4 L.R.A. (N.S.) 629, 7 Ann. Cas. 805; Alexander v. City of Vicksburg, 68 Miss. 564, 10 So. 62; Long v. City of Birmingham, 161 Ala. 427, 49 So. 881, 18 Ann. Cas. 507.

A municipality, in the exercise of its police powers, acts in a governmental and not in a private capacity, and is not liable for torts committed by its officers and agents in attempting to carry out and enforce its ordinances and...