O'Neill v. City of Birmingham

• Decision Date: 05 June 1930
• Docket Number: 6 Div. 285.
• Court: Alabama Supreme Court
• Parties: O'NEILL ET AL. v. CITY OF BIRMINGHAM ET AL.

130 So. 87

221 Ala. 580

O'NEILL ET AL. v. CITY OF BIRMINGHAM ET AL.

6 Div. 285.

Supreme Court of Alabama

June 5, 1930

Rehearing Denied Oct. 9, 1930.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages by John W. O'Neill and another against the City of Birmingham and the Southern Railway Company. From a judgment for defendant, plaintiffs appeal.

Reversed and remanded.

Defendants' charges, in action for consequential damages resulting from construction of viaduct, on weight to be given expert testimony, held reversible error.

Plea 4 is as follows:

"The plaintiffs should not recover in this case, because they demanded of the commissioners of the City of Birmingham that the viaduct that was constructed at the time and place described in the complaint, be constructed in substantially the way and manner in which it was constructed and thereby induced and influenced the commission of the City of Birmingham to arrange for the construction of said viaduct by means of Ordinance No. 982-C, attached to plea 3 in this case and hereby adopted and made a part of this plea as if fully set out herein."

The following charges were given for defendants:

"57. The Court charges the jury that you cannot award the plaintiffs any damages for any injury to any speculative value the property described in the complaint may have had prior to the erection of the viaduct."

"DC. The Court charges the jury that you have a right to reject and discard any element of speculation or chance that you are reasonably satisfied from the evidence entered into the opinions of the various experts that testified in this case as to the value of the property involved in this suit."

"54. The Court charges the jury that you are not bound by the opinion of the experts or by apparent weight of evidence, but you may give your own conclusions."

"56. The Court charges the jury that the opinion of an expert as to the value of the plaintiff's land involved in this suit, is an opinion only, and you may deal with it as you please, giving it credence or not as your own experience or general knowledge of the subject may dictate. Such opinions are mere estimates and are not conclusive on juries even when without conflict."

"J. The Court charges the jury that you cannot award the plaintiffs any damages for any injury done to a speculative chance that the property involved in this case might have developed into higher class property than it was at the time construction of the viaduct was started."

"55. The Court charges the jury that you have the absolute right to entirely disregard the opinion of all the experts who have testified in this case as to the value of the plaintiff's land, and to reach a conclusion in this case independent of any expert's opinion as to the value of said land as your own experience or general knowledge of the subject may dictate in connection with all the other evidence in the case."

"G. The Court charges the jury that the opinions of experts as to the value of plaintiff's property before and after the erection of the viaduct are not binding or conclusive on the jury. Such evidence is opinion evidence and is the estimate of people engaged in that line of business, and the law gives the jury the unrestricted right to disregard that kind of evidence and reach conclusions based on all the facts and circumstances in the case independent of the evidence of experts, even if such conclusions are opposed to the opinions of experts."

"53. The Court charges the jury that the opinion of experts as to the value of the property described in the complaint is not binding on the jury. You are not bound to accept it. You have the right to reach your own conclusion from all the evidence in the case, and entirely disregard the opinion of the experts as to the value of the plaintiff's property, if in your sound judgment, you are reasonably satisfied from the evidence that the opinion of the experts should be disregarded."

Harsh & Harsh and Frank S. White, Jr., all of Birmingham, for appellants.

Wilkinson & Burton and Hollis O. Black, all of Birmingham, for appellees.

BOULDIN J.

Appellants, John W. O'Neill and Lizzie M. O'Neill, sued the city of Birmingham and Southern Railway Company for consequential damages for alleged injuries to abutting property by the construction of a viaduct on Twenty-Fourth street in Birmingham.

Plea No. 4, set out in the report of the case, was sustained as against demurrer. This ruling is here presented for review.

Mere silent acquiescence in the taking of property for public use by those having the right of eminent domain, or such acquiescence in improvements resulting in consequential injury to abutting property for which just compensation is due, under section 235 of the Constitution, will not estop the owner to maintain an action for just compensation, nor be held a waiver of his right of action. Hargett v. Franklin County, 212 Ala. 423, 103 So. 40; Thornton v. Sheffield & Birmingham R. R. Co., 84 Ala. 109, 4 So. 197, 5 Am. St. Rep. 337; Southern Railway Co. v. Hood, 126 Ala. 312, 28 So. 662, 85 Am. St. Rep. 32.

But, in such case, if the owner becomes active in the procurement of the improvement, and by request or petition invites the making of the improvement as made, he cannot thereafter claim damages for the thing to which he has so given his consent. The maxim, "Volenti non fit injuria," is given application. Town of New Decatur v. Scharfenberg, 147 Ala. 367, 41 So. 1025, 119 Am. St. Rep. 81; Scharfenburg v. Town of New Decatur, 155 Ala. 651, 47 So. 95; Goetter, Weil & Co. v. Norman Bros., 107 Ala. 585, 596, 19 So. 56; 1 C.J. p. 971; 44 C.J. pp. 452, 453.

Plea 4 avers a demand made by plaintiffs upon the city that the "viaduct that was constructed *** be constructed in substantially the way and manner in which it was constructed."

This negatives any idea of the construction of a viaduct of substantially different type from that requested or in contemplation when request was made.

Whether there was a substantial change in the width of the proposed viaduct, and whether there was a withdrawal of consent made known to the city before the request was acted upon, were issues of fact presented by the plea.

If consent was withdrawn before the city made any commitments or outlays in keeping with such request, the same was no longer operative whatever the motive of withdrawal.

If the consent had no reference to the particular type of viaduct, but related to such viaduct as the city should see fit to adopt, it could not be withdrawn after the city had incurred the labor and expense, and made the commitments set forth in the ordinance made part of the plea.

It was not necessary that the request or demand of plaintiffs should be a leading or controlling inducement.

The doctrine "Volenti non fit injuria" means, "That to which a person assents is not in law an injury." 40 Cyc. 217.

Our rule that acquiescence alone does not defeat a claim for damages in cases of this class grows out of the status of the parties where the right of eminent domain is involved.

Where the party actually invites the taking of his property or the imposition of a servitude upon it for public use, which invitation is accepted, his act partakes so far of the nature of a dedication that our decisions have applied the doctrine "volenti non fit injuria."

Certain grounds of demurrer are directed to plea 4 as a sufficient defense on behalf of Southern Railway Company, sued with the city.

It appears from Ordinance 982-C, made part of the plea, that the city, claiming the right to require railroad companies to construct viaducts to eliminate grade crossings, entered into a contract with several railroad companies whereby Southern Railway Company, as agent for and on behalf of all parties, should construct the viaduct on Twenty-Fourth street on plans and specifications approved by the city under joint supervision, and at the joint expense of the city and the several railroad companies.

By the contract the city assumed all liability for damages to property owners by reason of such improvement.

A waiver or estoppel, to be effective on behalf of the city in such case, must inure to the agents of the city constructing the viaduct. A request that the city build the viaduct naturally contemplated that it do so through...