Tennessee Coal, Iron & R. Co. v. Wilhite

• Decision Date: 24 April 1924
• Docket Number: 6 Div. 101.
• Citation: 211 Ala. 195,100 So. 135
• Court: Alabama Supreme Court
• Parties: TENNESSEE COAL, IRON & R. CO. v. WILHITE.

100 So. 135

211 Ala. 195

TENNESSEE COAL, IRON & R. CO. v. WILHITE.

6 Div. 101.

Supreme Court of Alabama

April 24, 1924

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Action for damages by A. Wilhite against the Tennessee Coal, Iron &amp Railroad Company, for pollution of a running stream. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449,§ 6. Reversed and remanded.

Percy Benners & Burr, of Birmingham, and Goodwyn & Ross, of Bessemer, for appellant.

Pinkney Scott, of Bessemer, for appellee.

MILLER J.

This is a suit by A. Wilhite against the Tennessee Coal, Iron &amp Railroad Company, a corporation, to recover damages suffered by him as owner of a half interest in two lots used and occupied by him and his family as a residence, situated on the bank of 'Possum creek, by reason of pollution of this stream of water by defendant, causing human excrement, coal washing, coal ashes, cinders, and poisoned, foul matters to be dumped therein, which poisoned, corrupted, and polluted the water of the stream, made it send forth offensive and unhealthy odors into his home, and destroyed the comfortable use of it, made plaintiff and his family sick, and his well water was thereby ruined and poisoned. The jury returned a verdict in favor of the plaintiff, and from a judgment thereon in favor of the plaintiff by the court this appeal is prosecuted by the defendant.

There is only one count in the complaint which was amended. Demurrers of defendant to it as amended were overruled by the court. The defendant insists the count is not sufficiently intelligible in the statement of the facts for the defendant to join issue thereon. The facts therein could be more clearly and precisely alleged, but they are so presented that a material issue in law or fact can be taken thereon by the defendant. Section 5321, Code 1907. The defendant claims it does not aver with any degree of certainty when the alleged wrong complained of occurred. It avers it was done "in year 1919, and continuously since said time." This would mean from "in the year 1919 and continuously since said time" up to the filing of this suit, October 14, 1922. This sufficiently averred when the wrong occurred-that it was continuous from in 1919 to the filing of the suit. The facts alleged in the count as amended are sufficient to constitute a cause of action; and we find no error in the ruling of the court on the demurrers of the defendant thereto. T. C. I. & R. R. Co. v. Hamilton, 100 Ala. 252, 14 So. 167, 46 Am. St. Rep. 48; Mayor and Alderman of Birmingham v. Land, 137 Ala. 545, 34 So. 613; T. C. I. & R. R. Co. v. Bunn, 202 Ala. 22, 79 So. 360; City of Birmingham v. Prickett, 207 Ala. 79, headnote 4, 92 So. 7.

The defendant pleaded general issue, with leave to give in evidence any matter which would be competent as a defense with like leave to plaintiff in replication thereto.

The court permitted plaintiff to testify, over objection of defendant, that in high water times this creek "comes out on the lower end of my lots," the water "extends out 22 feet up on my ground," and after an overflow there is left black creosoting sediment from a shoe sole to a shoe mouth deep thereon.

The court charged the jury orally as follows, to which defendant reserved an exception:

"Even if he wasn't a riparian owner, however, if any deposits were made on his land by this defendant that were deleterious and detrimental to him in a material way, and he suffered material damages as the result thereof, he would be entitled, as the proximate result thereof, he would be entitled to recover therefor."

The defendant requested the court to give this written charge to the jury, which the court refused:

(50) "If you believe the evidence in this case you cannot award the plaintiff any damages on account of any flooding of the plaintiff's property, if the same was flooded."

The averments of the complaint bearing on this subject, appear in two places, as follows:

"Defendant by ditch or drainage emptying into said 'Possum creek above the plaintiff's said aforesaid land and dwelling dumped human excrement, coal washing, coal ashes, cinders, and poisoned foul matters which is dumped into, and is washed down to said creek to plaintiff's premises which makes and creates noxious smells and foul vapors."

And the other averment is as follows:

"And large deposits of ashes, débris, and poisonous substances and offensive matters have been left deposited along the banks of the said creek near his well and dwelling."

In City of Montgomery v. Hughes, 65 Ala. 203, this court wrote:

"It is an established rule, that all pleadings must be construed most strongly against the pleader, who is presumed most favorably for himself to state the cause of complaint, or matter of defense; and, as a consequence, when the pleading admits fairly of two constructions, the one least beneficial to him will be adopted."

See, also, Lovell v. De Bardelaben C. & I. Co., 90 Ala. 13, 7 So. 756; Brown v. Com. F. Ins. Co., 86 Ala. 189, headnote 5, 5 So. 500.

The complaint avers plaintiff owned one-half interest in two lots, 25 and 26 in block 2 in South Corey. It appears from the averments of the complaint that no damages are claimed for deposits on the land of plaintiff. There is no allegation and no claim in the complaint for flooding or overflowing land of plaintiff. There is no direct averment in the complaint that deposits or sediment were made by defendant on this land of plaintiff and claim of damages therefor. These are special damages; they must be particularly specified in the complaint before evidence thereof will be permitted and before recovery therefor will be allowed. The court erred in permitting proof thereof; the court erred in its oral charge permitting recovery for deposits on the land, and after this evidence was admitted the court should have given charge 50 requested by the defendant. Hanchey v. Brunson, 175 Ala. 243, 56 So. 971, Ann. Cas. 1914C, 804; T. C. I. & R. R. Co. v. Hamilton, 100 Ala. 252, 14 So. 167, 46 Am. St. Rep. 48.

Many errors are assigned on objections to questions because they call for conclusion or opinion of the witness, and many errors are assigned on charges given and refused because there was no proof of the value of the injury to the property of plaintiff from which the jury would be authorized to ascertain the amount of the damages in money. As this cause must be reversed, we will not refer specially to each of these alleged errors, but will refer to the rules for guidance of the court and parties on another trial.

When property is injured by another and damages are claimed therefor, the burden rests on plaintiff as a condition to recovery of damages to show the injury to the property and to make some proof from which the jury could measure and decide the damages done in money. B'ham R., L. & P. Co. v. Camp, 161 Ala. 456, headnote 1, 49 So. 846; Seaboard Mfg. Co. v. Woodson, 98 Ala. 378, 11 So. 733; B. R., L. & P. Co. v. Harden, 156 Ala. 244, headnote 7, 47 So. 327.

In M. & O. R. R. Co. v. Turner, 209 Ala. 667, 96 So. 707, this court said:

"The measure of damages for a nuisance by which the plaintiff's home has been subjected to noxious and disagreeable odors is

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