Hosmer v. Republic Iron & Steel Co.

• Decision Date: 16 January 1913
• Citation: 60 So. 801,179 Ala. 415
• Court: Alabama Supreme Court
• Parties: HOSMER v. REPUBLIC IRON & STEEL CO.

60 So. 801

179 Ala. 415

HOSMER v. REPUBLIC IRON & STEEL CO.

Supreme Court of Alabama

January 16, 1913

Rehearing Denied Feb. 6, 1913.

Appeal from Tuscaloosa County Court; H. B. Foster, Judge.

Action by William M. Hosmer against the Republic Iron & Steel Company. Judgment for defendant on demurrer, and plaintiff appeals. Reversed and remanded.

The facts made by the complaint are that, for a long time previous to the grievances herein complained of, defendant occupied and resided with his family, including intestate who was his son, upon a piece or parcel of land near Greeley in Tuscaloosa, Ala., and that, after plaintiff's residence and occupation upon said land had commenced, the agents and employés of defendant, acting for it and within the scope of their employment, dammed up certain water, and thereby created a lake or pond of water, or caused the same to be constructed or created, such lake, near his residence being so close thereto as to affect his health, and the health of his said family, and the enjoyment of his residence. It is then alleged that defendant was engaged in the development of iron and other minerals, and had caused said lake or pond to remain there for a long time, and had placed or caused to be placed in said pond various substances, which are named, and thereby caused or allowed said waters or lake to give off and out foul and unwholesome and noxious air, and caused said premises on which plaintiff resided to become unhealthy, causing plaintiff's boy to become sick, so that he died; and plaintiff alleges that said sickness was proximately caused by the wrongful act or omission or negligence of defendant as aforesaid in building maintaining, or constructing said pond as hereinbefore read. The demurrers were that the cause of action did not survive to the personal representative, and that the damages claimed did not survive; that there was nothing to show that plaintiff's intestate was the owner of the land, or had any possessory or leasehold interest therein; that the damages claimed are purely consequential; and that no right of action was shown.

Daniel Collier, of Tuscaloosa, for appellant.

Oliver, Verner & Rice, of Tuscaloosa, for appellee.

SAYRE J.

The effect of the complaint is to aver that the death of plaintiff's intestate, on account of which he sues, was caused by an issue of foul, unwholesome, and noxious air from a pond which defendant corporation constructed in the neighborhood of his residence, where intestate, his minor child, lived with him. We are not required to know how plaintiff will prove the causation alleged; but, accepting the allegation as true and provable on demurrer, there will be no question but that it shows damage peculiar to intestate, not merely in degree but in kind. The only factor of the case presented which it is conceived may possibly be effective in denial of the cause of action asserted is that plaintiff's intestate owned no legal interest or estate in the land upon which he lived. To sustain his contention that the complaint is defective in this respect, appellee quotes Blackstone's definition of nuisance as "anything done to the hurt or...