King Land Co. v. Bowen

• Decision Date: 04 February 1913
• Citation: 61 So. 22,7 Ala.App. 462
• Parties: KING LAND CO. v. BOWEN.
• Court: Alabama Court of Appeals

61 So. 22

7 Ala.App. 462

KING LAND CO. v. BOWEN.

Court of Appeals of Alabama

February 4, 1913

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by William E. Bowen against the King Land & Improvement Company for damages for overflowing land. Judgment for plaintiff, and defendant appeals. Reversed and remanded on rehearing.

"Count 1. The plaintiff claims of defendant $1,000 as damages for that, heretofore, to wit, for a year immediately preceding the filing of this suit, plaintiff was in possession of the following tract of land, to wit: E. 1/2 of N.W. 1/4 of the N.W. 1/4 of section 20, township 17, range 2 W., and a part of S.W. 1/4 of said N.W. 1/4, described as follows, to wit 'Begin at the southeast corner of said northwest quarter of the northwest quarter of section 20, run thence south along the east boundary line [and here follows description by metes and bounds]' upon which land plaintiff resided with his family, and conducted the business of keeping a dairy and raising crops, chickens, and other things; that during said year large quantities of water were caused to flow or be upon said land, and as a proximate consequence of said water flowing or being upon said land, as aforesaid, said premises were rendered of less value to plaintiff as a place of residence and a place to conduct said business, and was rendered less comfortable and convenient for plaintiff as a residence for himself and family, and as a place to conduct said business, and plaintiff was put to great trouble inconvenience, and expense in or about using, and his efforts to use said place for the purpose aforesaid, and plaintiff was made sick, and suffered great mental and physical pain and members of plaintiff's family, to wit, his wife and children, were made sick, and plaintiff was put to great trouble, inconvenience, and expense for medicine, medical attention, care, and nursing, in or about his efforts to heal and cure their said sickness. Plaintiff alleges that defendant wrongfully caused said water to flow or be upon said land, and said wrong of defendant proximately resulted in said injuries and damage to plaintiff.

"Count 2. Plaintiff refers to and adopts all the words and figures of the first count, from the beginning thereof, to and including the words, 'heal and cure their said sickness,' where they first occur together in said count and adds thereto the following words of averment: 'Plaintiff avers that defendant's servant or agent, acting within the line and scope of his authority as such, wrongfully caused said water to flow or be upon said land, and said wrong of defendant's said servant or agent proximately resulted in said injuries and damage to plaintiff.'

"Count 3. Plaintiff refers to and adopts all the words and figures of the first count, from the beginning thereof to and including the words, 'heal and cure their said sickness,' where they first occur together in said count, and adds thereto the following words of averment: 'Plaintiff avers that defendant negligently caused said water to flow or be upon said land, and said negligence of defendant proximately resulted in the said injuries and damage to plaintiff.' "

The demurrers were as follows: "(1) Said count fails to show how and in what manner the defendant wrongfully caused said water to flow or be upon said lands. (2) The allegations of said count as to the wrong and injury done by defendant to the plaintiff is too indefinite and uncertain, and does not sufficiently allege how the defendant caused injury to the plaintiff. (3) Said count does not set forth and allege facts sufficient to make a cause of action against the defendant. The defendant demurs to the second and third counts of the complaint, and assigns all of the grounds of demurrer assigned to the first grounds thereof."

The following charges were refused to the defendant:

"(2) The court charges the jury that defendant had the right, under the law to protect his said land by drainage from the surface water of the property to which his land was servient, provided it acted with reasonable care and diligence, and if in so doing, said rainwater then flowed upon plaintiff's land, and the damages complained of resulted therefrom, your verdict must be for the defendant.

"(3, 4) Affirmative charge and affirmative charge as to the third count."

"(6) The defendant had a right to ditch or grade its land, provided it did so with prudent regard to the welfare of plaintiff, and provided it did no more than concentrate the water and cause it to flow more rapidly and in greater volume on plaintiff's land.

"(7) If the jury believe from the evidence that the excessive rainfall caused the breakage of the dam erected by the defendant for the protection of his property, and this precipitated a great volume of water upon plaintiff's land which was the natural course for the water to flow, then defendant would not be liable to plaintiff in damages.

"(8) The owner of lands has a right to drain them by artificial ditches, although thereby the water is precipitated more rapidly, and in greater volume, on the land of an adjacent proprietor below, provided, he does not thereby cause water to flow on the lands of such adjacent proprietor, which in the absence of the ditch would have flowed in a different direction, and provided he acts with a prudent regard for the welfare of his neighbor, and if the jury believe from the evidence in this case that defendant by digging said ditch did not cause water to flow on said lands which did not previously flow thereon, they must find for the defendant.

"(9) The defendant had the right by ditches, or otherwise, to cause the water to flow on the land of the plaintiff, which in the absence of such ditches would not have flowed in a different direction.

"(10) If the evidence shows that the land of the plaintiff was lower than that of defendant, and that defendant did nothing which caused the water to flow upon plaintiff's land which would naturally flow thereon, the defendant would not be liable for damages sustained by plaintiff, and their verdict must be for the defendant."

A.C. & H.R. Howze, of Birmingham, for appellant.

Bowman, Harsh & Beddow, of Birmingham, for appellee.

THOMAS, J.

The complaint, as originally filed and served on the defendant was against the King Land Company, a corporation. At the trial, with the permission of the court, granted over the objection and exception of the defendant, the plaintiff was allowed to amend his complaint by correcting the name of the defendant corporation so as to make it read "King Land & Improvement Company," instead of "King Land Company." This was not an entire change of party defendant, but, so far as the record shows, was a mere correction of the name of the real corporation sued, and was entirely permissible under the authorities. Singer Co. v. Greenleaf, 100 Ala. 272, 14 So. 109; Lewis Lumber Co. v. Camody, 137 Ala. 578, 35 So. 126; Smith v. Plank Road, 30 Ala. 650, and other authorities cited under section 5367 of Code of 1907. The appellant's counsel assert in brief that the amendment mentioned amounted to an entire change of party defendant, because, they say, that at the time of the service of the complaint, and at the time of the amendment thereof, there was in fact then in existence a corporate entity by the name of the King Land Company.

The record nowhere shows this to be a fact, and we certainly are not authorized to take judicial knowledge of it, even if it be a fact. Assuming, however, that it is a fact, the situation is not altered. The King Land & Improvement Company, the real defendant--the party really intended to be sued--was the party actually served with the original process, and the party actually brought into court as a result thereof, and the party who actually defended the case in court upon its merits, under the name "The King Land Company" as given in the complaint originally served. Beyond cavil then, this latter name was a mere misnomer of the real defendant; and it was its duty to itself in the first instance--in order to have afforded record evidence for a plea of res judicata in the future, should it ever be thereafter sued by the right name for the same cause of action--to have filed in this case a plea in abatement, setting up that it was sued by the wrong name; that it is not known and called by that name, and stating what its real name was, so as to have furnished plaintiff, in the language of the old books, a "better writ." The proof of this plea, under the common law, would have put plaintiff to another suit; but under our liberal statutes of amendments he would have been allowed to amend his complaint by correcting the name to meet the plea. Savannah, Americus & Montgomery Ry. Co. v. Buford, 106 Ala. 308, 17 So. 395. The same result in this case was accomplished by a different method, and there is and can be no injury. The fact developed in the course of the trial that there was a mistake in the complaint as to defendant's name, and plaintiff asked and obtained leave to amend his complaint so as to correct the mistake.

An inspection of the complaint and demurrers thereto, which will be set out in the report of the case, will, we think, in the light of the decisions of the Supreme Court of this state, upon a fair analysis of that complaint, show that the lower court did not err in overruling the demurrers.

The rule has been long established in this state, adopted from Chitty on Pleading, that: "When the gravamen of the action is the alleged nonfeasance or misfeasance of another, as a general rule, it is sufficient if the complaint avers facts out of which the duty to act springs, and that the defendant negligently performed, or failed to perform,...