Mayo v. Mobile Asphalt Co.

• Decision Date: 29 June 1961
• Docket Number: 1 Div. 933
• Citation: 272 Ala. 442,131 So.2d 881
• Parties: Edward C. MAYO v. MOBILE ASPHALT COMPANY, Inc.
• Court: Alabama Supreme Court

Page 881

131 So.2d 881

272 Ala. 442

Edward C. MAYO v. MOBILE ASPHALT COMPANY, Inc.

1 Div. 933.

Supreme Court of Alabama.

June 29, 1961.

Herndon H. Wilson, Mobile, for appellant.

Lyons, Pipes & Cook, Mobile, for appellee.

MERRILL, Justice.

This appeal follows an involuntary non-suit taken by plaintiff after a demurrer was sustained to Counts 1 and 2 of his complaint. The two assignments of error are that the court erred in sustaining the demurrer to Count 1 on June 13, 1958, and in sustaining the refiled demurrer to Counts 1 and 2 on July 15, 1959. The judgment of non-suit was entered March 8, 1960, and the appeal was taken September 7, 1960.

Count 1 alleges that in May, 1956, 'off Wolf Ridge Road' there had been for a long time an unused or abandoned well or cistern on the premises of defendant; that it was not covered or filled up, nor was a substantial enclosure being maintained, and that plaintiff's minor son was either killed by falling into the well or cistern, or died after falling into it, being unable to extricate himself therefrom. It was further averred that the presence of this cistern was in violation of Tit. 14, § 384, Code 1940, which reads:

'All persons on whose premises or lands are located abandoned or unused wells, cisterns or mining shafts shall cover or fill them up, or in the event they wish to retain them for possible future use, they shall place and maintain a substantial enclosure around such wells, cisterns or mining shafts in order that no person or live stock may be injured thereby. Any person violating the provisions of this section shall, on conviction, be fined not less than ten dollars, nor more than fifty dollars.'

Plaintiff argues that this allegation was sufficient to show negligence per se on the part of the defendant.

The trial court correctly sustained the demurrer to Count 1 if we continue to follow the case of Alabama Great Southern R. Co. v. Cummings, 211 Ala. 381, 100 So. 553, 556, 33 A.L.R. 439. Count 1 closely follows Count 2 in the Cummings case. The same statute, now Tit. 14, § 384, was the basis of the suit. The Cummings case holds that:

(1) Title 14, § 384, Code 1940, is an attempt on the part of the legislature to denominate abandoned or unused wells, cisterns and mining shafts as public nuisances.

(2) The plaintiff's complaint relying on the failure to comply with the terms of the statute is based on the theory of a public nuisance causing special injury.

(3) The constitutionality of the code section must rest upon the authority of the legislature to exercise the police power for the suppression of public nuisances.

(4) A legislative enactment which unreasonably interferes with a private citizen's use of his property is a taking of property without due process of law and is unconstitutional.

(5) An excavation on private premises may become a nuisance only where the excavation adjoins a public highway in such a manner as to render the way unsafe to those who used it with ordinary care.

(6) Title 14, § 384, denounces all abandoned or unused wells, cisterns and mining shafts without regard for their location with reference to highways, or other public places, or the premises of adjoining proprietors, and is, therefore, unconstitutional as violative of the due process clause of the Alabama and United States Constitutions. Const.1901, § 6; U.S.Const. Amend. 14.

(7) The plaintiff's complaint does not state facts showing a duty unless it alleges that the abandoned or unused well, cistern or mining shaft was adjoining a public highway.

Here, the complaint merely places the well or cistern 'off Wolf Ridge Road.' This could mean several miles off the road.

Appellant insists that there is a decided difference in the Commings case and the instant case because there, a cow drowned, and here, a child drowned. That fact was also noted in the Cummings case in the following language:

'This should suffice to dispose of any question as to the duty of landowners to intelligent beings who come upon their property without invitation, express or implied. And even as to children so little advanced as to be unable to recognize patent dangers this court has said, following the authorities generally, that----

"Their inefficiency cannot be allowed to shift the care of them from their parents to strangers, or impose upon the owners of property a duty and liability where otherwise none would exist."

This court also said in the Cummings case:

'The effect of the complaint is to charge defendant with negligence, and the substance of the negligence alleged is the failure to comply with the terms of the act. But, if defendant, in failing to inclose the abandoned and unused well upon its property, not so near its boundaries as to constitute a source of...