Sloss-Sheffield Steel & Iron Co. v. Wilkes, 6 Div. 175.

• Decision Date: 10 March 1938
• Docket Number: 6 Div. 175.
• Citation: 181 So. 276,236 Ala. 173
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. WILKES ET AL.
• Court: Alabama Supreme Court

181 So. 276

236 Ala. 173

SLOSS-SHEFFIELD STEEL & IRON CO. v. WILKES ET AL.

6 Div. 175.

Supreme Court of Alabama

March 10, 1938

Rehearing Denied May 26, 1938.

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Action for damages by J. M. Wilkes and Nannie V. Davis against Sloss-Sheffield Steel & Iron Company and another. From a judgment for plaintiffs, the named defendant appeals.

Reversed and remanded.

In action for damages to realty caused by collapse of mines on adjoining property, where under no theory of the evidence could it be inferred that operator was chargeable with anticipating any damage to adjoining land by reason of roof falls, verdict should have been directed for the defendant.

Count R of the complaint is (omitting description of land) as follows:

"Plaintiffs claim of the Defendants the sum of $25,000.00 as damages for this: That on to-wit the 28th day of August, 1932, and for a long period of time prior thereto, these Plaintiffs were the joint and equal owners in fee of the surface rights in and to the following described real property situated in Jefferson County, Alabama, to-wit: * * *

"That on said date, and for many years prior thereto, these Defendants were in possession of the mineral rights in and to certain lands situated near by and adjoining the said lands of these Plaintiffs, and said Defendants had theretofore operated and worked two mines in said mineral rights of said adjoining lands on and for many years prior to the date hereinabove referred to, said mines being commonly known as Sloss Ore Mines numbered 1 and numbered 2; and said Defendants, in the course of their operation of said mines had removed a great portion of said minerals or ore from said mines prior to the date above noted.

"And plaintiffs further aver that on to-wit the fourth day of May 1932, the Defendants herein negligently caused or allowed the roof of said Sloss Ore Mine numbered one to fall or cave in to such an extent that as a proximate consequence thereof on to-wit August 28, 1932 the surface of Plaintiffs said lands was cracked and disturbed and caused to sink and subside, a great number of springs and wells then and there located on Plaintiff's lands were caused to go dry and the flow of water therefrom was diverted and retarded, the reasonable market value of said lands was greatly depreciated, and Plaintiffs were otherwise injured and damaged in their use, possession, enjoyment, and ownership of said property. Wherefore plaintiffs sue."

Count S is, in pertinent part, the same as count R.

Bradley, Baldwin, All & White, E. L. All, and Kingman C. Shelburne, all of Birmingham, and Huey & Welch, of Bessemer, for appellant.

Howard H. Sullinger and McEniry & McEniry, all of Bessemer, for appellees.

FOSTER Justice.

This is a second appeal in this case. See 231 Ala. 511, 165 So. 764, 770, 109 A.L.R. 385.

After it was reversed, and on the second trial, the complaint was amended so as to charge the wrongful act against both defendants, not against one as the employer by reason of the wrongful act of the other as employee. And though the complaint charged a joint act, it was also several, and judgment for one and against the other was not violative of any rule of law. See cases cited under headnote 21 on former appeal. Section 5720, Code. That was the result of the second trial, and no error appears in that respect.

There were two counts on which the trial was had. Count R related to the fall which occurred on May 4th in mine No. 1; count S related to the fall on June 15, 1932, in mine No. 2. Both counts allege that defendants negligently caused or allowed the roof of the mine to fall or cave to such an extent that as a proximate consequence thereof, on to wit, August 28, 1932, the surface of plaintiff's land, which adjoined that in which the fall occurred, was cracked and disturbed and caused to sink and subside, and springs and wells on plaintiff's land caused to go dry, and the water diverted and retarded, to his damage.

Objection to those counts was made by demurrer, and urged on this appeal, and is that they do not allege a breach of duty shown to exist by defendants to plaintiffs. Of course that is an essential of every action at law. Ordinarily, a negligent injury is a breach of duty. Southern Ry. Co. v. Arnold, 162 Ala. 570, 50 So. 293; 45 Corpus Juris 1045, note 83.

But every negligent act from which injury results is not a negligent injury nor a breach of duty. Whether it is so, depends upon whether the injury is the proximate result of the negligent act. As a rule, a complaint which alleges the occurrence of a negligent act by defendant, and that, as a proximate result of it, plaintiff was injured in person or property, a breach of duty is shown providing a cause of action. Louisville & Nashville R. R. Co. v. Kelly, 198 Ala. 648, 73 So. 953.

If the complaint alleges facts which show that the injury was not the proximate result of the negligence, or such a presumption obtains from the facts alleged, no duty is shown, notwithstanding a general averment that it was the proximate result. Appellant claims that to be the status of this complaint, because it avers that plaintiff's land, claimed to have been damaged, was situated adjoining that in which the falls occurred, and not the surface over and above it.

From that circumstance the complaint is not rendered insufficient to show a breach of duty, unless the damage could not have been, as alleged, proximately caused by the falls, said to have been negligent. If one operating his mine is wholly immune under all circumstances from such damage to an adjoining owner occasioned by his negligence, there is no cause of action, because the damage is not the proximate result of his act. But if under any circumstances he owes a duty of due care to such owner in respect to such matters, the allegation that the damage was the proximate result of defendant's negligence will be attributed to a breach of that duty, the contrary not appearing; so that the question of the sufficiency of the complaint in this respect calls for a consideration of the law applicable to the whole subject of this litigation, and this is proper and necessary also to determine whether the evidence is sufficient to support or justify a verdict for plaintiff in any aspect of the controversy.

On the former appeal we made a careful study of the law pertaining to this subject, and as a result of that study we declared a rule here applicable as follows: "If defendant is conducting any sort of operations to which its land is adapted in an ordinary and careful manner, and as a consequence percolating water is drained, affecting the surface owner's water supply, either of that or adjoining land, no liability for his damage exists. But if the waters are drained without a reasonable need to do so, or are willfully or negligently wasted in such operation in a way and manner as that it should have been anticipated to occur, and as a proximate result the damage accrued to the surface owners so affected, including adjoining landowners, there is an actionable claim, as held by what we think are the best considered cases."

To have a better understanding of what is there stated, we quote as follows from 22 R.C.L. page 140: "Those who are negligent are held in law to know the usual effect of ordinary natural conditions and forces on a negligent act or omission, and to have contemplated the appearance and the effect of such...