Murkerson v. Adler

• Citation: 178 Ala. 622,59 So. 505
• Parties: MURKERSON v. ADLER ET AL.
• Decision Date: 30 May 1912
• Court: Supreme Court of Alabama

59 So. 505

178 Ala. 622

MURKERSON v. ADLER ET AL.

Supreme Court of Alabama

May 30, 1912

Appeal from City Court of Bessemer; J. C. B. Gwin, Judge.

Action by Sandy Murkerson against Morris Adler and others for damages for maintaining a nuisance. Judgment for defendants and plaintiff appeals. Affirmed.

The first count alleges the creation of a nuisance by operating and controlling a permanent plant for the reception of most of the sewerage from the city of Birmingham and Bessemer that this sewerage is received into a septic plant, where it is retained for a length of time, and disintegrated until it emits foul and sickening odors and noxious gases to the great damage of plaintiff and his family and his tenants.

The following charges were given at the request of the defendants: (7) "The mere fact, if you believe it is a fact from the evidence, that odors from the septic tank can be detected at times from plaintiff's residence, would not entitle plaintiff to recover damages." (9) "Unless you believe from the evidence that during the year preceding the filing of this suit defendants did some act, or caused some act to be done, which was the proximate cause of injury to the plaintiff, your verdict must be for the defendants." (10) "The fact that the defendants paid the county or the Jefferson county sanitary commission the cost of the septic tanks, if you believe from the evidence that they did so, would not of itself render defendants liable to plaintiff for any injury which he may have sustained from this maintenance, if you believe from the evidence he has sustained such injury."

The following charges were refused to the plaintiff: (9) "The court charges the jury that defendants have had such connection with the operation of the septic tanks as purification plant to render them liable in this case provided it is a nuisance and has damaged plaintiff as alleged." (16) "The court charges the jury that if they find from the evidence in this case that the septic tanks in question, and the products that flow therefrom, give off noxious odors that can be smelled by persons of ordinary sensibilities at the residence of the plaintiff, and that such odors are calculated to materially interfere with the comfortable enjoyment of said premises, and did so interfere with the plaintiff's enjoyment thereof during the year or a material part thereof next preceding the filing of this suit, then the plaintiff is entitled to a verdict at your hands." (21) "The court charges the jury that the undisputed evidence in this case shows that the defendants had sufficient connection with the purification plant in question to render them liable in damages to plaintiff, provided the said plant was a nuisance, and that plaintiff was damaged by said nuisance, as alleged in his complaint."

Estes, Jones & Welch, of Bessemer, for appellant.

Percy, Benners & Burr, of Birmingham, for appellees.

ANDERSON J.

The first count of the complaint is for the "creation of a...