J.P. Morgan Paving Co. v. Shoemaker

• Decision Date: 22 October 1925
• Docket Number: 6 Div. 372
• Parties: J.P. MORGAN PAVING CO. v. SHOEMAKER.
• Court: Alabama Supreme Court

105 So. 884

213 Ala. 625

J.P. MORGAN PAVING CO. v. SHOEMAKER.

6 Div. 372

Supreme Court of Alabama

October 22, 1925

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by J.C. Shoemaker against the J.P. Morgan Paving Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

Tillman Bradley & Baldwin, Bradley, Baldwin, All & White, and A.K Foster, and J.D. Rucker, all of Birmingham, for appellant.

Black &amp Harris, of Birmingham, and W.C. Woodall, of Tallassee, for appellee.

SOMERVILLE J.

The demurrer attacks the complaint for its alleged joinder of two distinct causes of action in a single count viz. the maintenance of an asphalt mixer and boiler, and also the keeping of a large number of mules, in close proximity to plaintiff's house. The theory of the demurrer is that these are separate and distinct nuisances in operation and effect, and the principle invoked is that laid down in Iron City Mining Co. v. Hughes, 144 Ala. 608, 42 So. 39:

"While, under our system of pleading as well as under the common law, counts for distinct and independent torts, of the same nature, and upon all of which the same judgment was to be given, could be joined in separate counts in the same action, there is no law permitting the plaintiff to unite in one count several torts, constituting distinct and separate causes of action."

There is nothing in the complaint, however, to indicate an intendment of separate and distinct nuisances with respect to the mixer and the mules; and we think the reasonable meaning of the whole complaint is that the two things operated conjointly to make defendant's place a single nuisance, notwithstanding the several stated factors contributing to that result. The complaint refers to a single place and a single nuisance, and not to several, and we think the point of the demurrer is too finely drawn and too technical for the practical purpose of justice. It was properly overruled.

The plaintiff offered no evidence of permanent injury to his home as a result of the nuisance, but was allowed to show its decreased rental value during the 12 months preceding the filing of the suit. This evidence was objected to by defendant on the theory that it was variant from the complaint under which (the insistence is) damages are claimed only for permanent injury, to which the proof and recovery must be limited.

We cannot agree with this view of the complaint. It alleges that the smoke, dust, foul odors, and noises described, have caused plaintiff and his family "inconvenience annoyance, discomfort, and injury, and has rendered plaintiff's home and building in which he resided less valuable; and plaintiff's sleep has been disturbed, and his peace and comfort have been destroyed in his own home." Even conceding that the italicized clause should be construed as an allegation of permanent injury, other items of damage are claimed which authorize...