Lehigh Portland Cement Co. v. Higginbotham, 6 Div. 904
| Decision Date | 19 March 1936 |
| Docket Number | 6 Div. 904 |
| Parties | LEHIGH PORTLAND CEMENT CO. v. HIGGINBOTHAM et al. |
| Court | Alabama Supreme Court |
Rehearing Denied April 23, 1936
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
Action for damages by Oscar E. Higginbotham and Georgia Higginbotham against the Lehigh Portland Cement Company. From a judgment for plaintiffs, defendant appeals. Transferred from Court of Appeals.
Affirmed.
Bradley Baldwin, All & White and S.M. Bronaugh, all of Birmingham for appellant.
John W Altman and J.L. Drennen, both of Birmingham, for appellees.
The several counts of the complaint on which the case was submitted to the jury are in case. Though count 5 claims damages "for a trespass by the agents or servants of the defendant while acting within the line and scope of their employment," nevertheless the liability of the defendant, if liable at all, is purely consequential. It is not charged with participating in the damnifying act. Its liability rests upon the doctrine respondeat superior. Southern Railway Co. v. Hanby, 166 Ala. 641, 52 So. 334.
The injury alleged and damages claimed are not alleged to be the proximate result of a single act or occurrence, but the proximate consequence of a series of acts or course of conduct by the defendant's agents or servants in the prosecution of defendant's business, to plaintiffs' hurt, constituting a private nuisance. Code 1923, § 9271; Central Iron & Coal Co. v. Vandenheuk, 147 Ala. 546, 41 So. 145, 6 L.R.A. (N.S.) 570, 119 Am.St.Rep. 102, 11 Ann.Cas. 346; Alabama Power Co. v. Stringfellow, 228 Ala. 422, 153 So. 629.
The averments of counts 1 and 8 are in substance the same as the counts considered in Lehigh Portland Cement Co. v. Donaldson (Ala.Sup.) 164 So. 97. The judgment here is that the court did not err in overruling the defendant's demurrers to said counts.
The evidence offered by the plaintiffs goes to show that they suffered from $1,500 to $1,800 damages to their home. The defendant offered no evidence as to the nature and extent of the damages. The jury, after hearing the evidence, inspected the property and returned a verdict assessing plaintiffs' damages at $675, and there was no complaint in the trial court, nor here, that the damages were excessive. Therefore conceding that the court erred in giving and refusing charges dealing only with the measure of damages, we are satisfied, after...
To continue reading
Request your trial
-
Hoffman-La Roche, Inc. v. Campbell
...on that basis. See North British & Mercantile Ins. Co. v. Sciandra, 256 Ala. 409, 54 So.2d 764 (1951); Lehigh Portland Cement Co. v. Higginbotham, 232 Ala. 235, 167 So. 259 (1936); Corry v. Sylvia Y Cia, 192 Ala. 550, 68 So. 891 All other issues having been either addressed in or intentiona......
-
State v. Dunlap
...two cases previously decided by this court. Birmingham Belt R. Co. v. Hendrix, 215 Ala. 285, 110 So. 312, and Lehigh Portland Cement Co. v. Higginbotham, 232 Ala. 235, 167 So. 259. In Birmingham Belt R. Co. v. Hendrix, supra, the railroad appealed from a judgment against it in favor of the ......
-
Southern Furniture Mfg. Co. v. Mobile County
...that the compensation awarded was excessive. Birmingham Belt R. Co. v. Hendrix, 215 Ala. 285, 110 So. 312; Lehigh Portland Cement Co. v. Higginbotham, 232 Ala. 235, 167 So. 259.' In Fallaw v. Flowers, supra, it was 'Further, it is clearly enunciated by the cases that an excessive verdict ca......
-
Cooper v. Watts
...186 So.2d 139; State v. LeCroy, 279 Ala. 428, 186 So.2d 142; State v. Peinhardt, 270 Ala. 627, 120 So.2d 728; Lehigh Portland Cement Co. v. Higginbotham, 232 Ala. 235, 167 So. 259; Birmingham Belt R. Co. v. Hendrix, 215 Ala. 285, 110 So. 312, cert. den. 273 U.S. 758, 47 S.Ct. 472, 71 L.Ed. ......