Sloss-Sheffield Steel & Iron Co. v. Mitchell

• Decision Date: 20 May 1909
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. MITCHELL.
• Court: Alabama Supreme Court

49 So. 851

161 Ala. 278

SLOSS-SHEFFIELD STEEL & IRON CO. v. MITCHELL.

Supreme Court of Alabama

May 20, 1909

Appeal from Circuit Court, Jefferson County; A. H. Alston, Judge.

Action by G. B. Mitchell against the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Tillman Grubb, Bradley & Morrow, for appellant.

Samuel Will John, for appellee.

SAYRE J.

This was an action for damages for the overflow of appellee's land, caused by the defendant's obstruction of the natural flow of waters in a creek or branch. In counts 1 and 2 it is alleged that plaintiff's land was flooded or overflowed; the damage inflicted not being further particularized. This was not a sufficient description of the injury to put defendant fairly upon notice of the nature of the proof to be offered. The damages to be determined by the verdict of the jury were measurable by the character and extent of the injury done to the plaintiff's property. They may have ranged from an inconsiderable inconvenience to the washing away of the soil, houses, etc., and defendant was entitled to be apprised with reasonable certainty and definiteness of the proof to be made. City Delivery Co v. Henry, 139 Ala. 161, 34 So. 389. True, these counts were amended, subsequent to the filing of the demurrer, by a change in the allegation as to the amount of damage sought that is to say, by striking out the words "fifteen hundred" and inserting in lieu thereof the words "six thousand." But the amendment effected no change in the description of the cause of action, and a refiling of the demurrer was unnecessary. The demurrers to these counts should have been sustained.

In the third count the "plaintiff avers that during the months of January and February, 1905, his said lands were overflowed from the backwaters from said yards and railroads, and remained under water for several days during said months." In Alabama, etc., R. R. Co. v. Shahan, 116 Ala. 302, 22 So. 509, it was held, over the dissent of McClellan, J., that a count of the complaint which averred injuries to the plaintiff resulting from several separate and distinct overflows was demurrable, for that it improperly joined separate and distinct causes of action. But the count under consideration is not open to that criticism. We construe it to allege an overflow continuing through several days, and covering parts of January and February, so that the injury done on any particular day could not be distinguished from that done on any other day. In this respect the count was not objectionable. We find in the record no demurrer addressed to other counts of the complaint, and will not, therefore, consider those assignments of error which are based upon the supposed ruling on demurrer to them.

The overflow complained of was shown to have occurred in January and February, 1905. Over the objection of the defendant, the plaintiff was allowed to introduce testimony showing that the pipes, the clogging of which were charged to have caused the plaintiff's injury, were filled, or partially filled, with sand in July following. This evidence was relevant, of course, only on the theory that it tended to show the condition of the pipes on and before the date of the injury. But the condition of the pipes in the respect inquired about was in the nature of things so liable to be affected by every recurring rainfall, and possibly other intervening and contributory causes, that their condition in July furnished no just inference as to their condition six months previously, unless in connection with proof of a status substantially the same on the two dates. The objection to this evidence should have been sustained.

Plaintiff had a number of tenant houses upon his land, and it appeared in evidence that the overflow of water invaded some of the houses, leaving in those invaded, and under all of them, and on the land, slime, mud, and débris, causing the floors to swell, and piers to settle, and the sills to rot. The plaintiff testified that he had cleaned up the land and houses, and partially repaired the injuries done to the foundations and floors of the houses. This had been accomplished at an expenditure of $300, and had so far restored the premises to their original condition that the rent received from each of the houses had been diminished by 50 cents a month only. There had been no loss of soil, nor had any part of the premises been seriously or permanently overlaid by soil deposited upon them. On these facts, without more, the plaintiff was not entitled to compensation as for the lasting detriment of his land--as for detriment not to be averted or removed by reasonable effort and expenditure. 4 Suth. Dam. §§ 1017, 1018; Abercrombie v. Windham, 127 Ala. 179, 28 So. 387. So far as these injuries are concerned, the true measure of plaintiff's damages was the reasonable expense of restoring the premises and the loss of income pending their restoration with reasonable effort, expenditure, and expedition. The plaintiff was in duty bound to make reasonable effort to prevent the accumulation of damages. In Loker v. Damon, 17 Pick. (Mass.) 284, plaintiff failed for a considerable time to repair a fence which defendant had wrongfully pulled down. Cattle got in and ate his grass. Chief Justice Shaw said: "In assessing damages, the direct and immediate consequences of the injurious act are to be regarded, and not remote, speculative, and contingent consequences, which the party injured might easily have avoided by his own act. Suppose a man should enter his neighbor's field unlawfully and leave the gate open; if, before the owner knows it, cattle enter and destroy the crop, the trespasser is responsible. But if the owner sees the gate open, and passes it frequently, and willfully and obstinately, or through gross negligence, leaves it open all summer, and cattle get in, it is his own folly. So if one throw a stone and break a window, the cost of repairing the window is the ordinary measure of damage. But if the owner suffers the window to remain without repairing a great length of time after notice of the fact, and his furniture or pictures, or other valuable articles, sustain damage, or the rain beats in and rots the window, this damage would be too remote." So in Chase v. N.Y. C. R. R., 24 Barb. (N. Y.) 273, in an action to recover damages for injuries done to plaintiff's house and grounds by water turned upon plaintiff...