Tennessee Valley Sand & Gravel Co. v. Pilling

• Decision Date: 07 March 1950
• Docket Number: 8 Div. 823
• Citation: 35 Ala.App. 237,47 So.2d 236
• Parties: TENNESSEE VALLEY SAND & GRAVEL CO. v. PILLING.
• Court: Alabama Court of Appeals

Page 236

47 So.2d 236

35 Ala.App. 237

TENNESSEE VALLEY SAND & GRAVEL CO. v. PILLING.

8 Div. 823.

Court of Appeals of Alabama.

March 7, 1950.

Rehearing Denied March 28, 1950.

McDonnell & Jones, of Sheffield, and Williams & Williams, of Russellville, for appellant.

Guin & Guin, of Russellville, for appellee.

CARR, Judge.

Mrs. Hattie Pilling and F. H. McGuire each brought suit against the Tennessee Valley Sand and Gravel Company, a corporation. By agreement the two cases were consolidated for trial and submitted to one jury. In the court below there was a verdict and judgment in favor of each plaintiff.

The appeals in both cases are before this court, but are presented by separate records. Identical questions are submitted for our review by both records and briefs of counsel.

Mrs. Pilling and Mr. McGuire are adjoining landowners, each owning a forty-acre farm. The appellant owns lands north and east of these farms. The locations of the properties of the litigants and the flow of Little Bear Creek are such that appellees are lower riparian owners.

The appellant operates a sand and gravel pit and plant on a site located on its lands. The plaintiffs base their claim for damages to their lands on the alleged negligent operation of the defendant's plant.

In reviewing the assignments of error, we will adhere to the rule that if kindred questions are not presented and assignments are argued in brief in groups, if one is without merit, a consideration of the others may be pretermitted. Buffalo Rock Co. v. Davis, 228 Ala. 603, 154 So. 556; Moseley v. Alabama Power Co., 246 Ala. 416, 21 So.2d 305; Christ v. Spizman, 33 Ala.App. 586, 35 So.2d 568; Ray v. Terry et al., 32 Ala.App. 582, 28 So.2d 916.

Assignment No. 1

'The Court committed error in overruling the demurrers of the Defendant to the complaint.'

Appellant presses three positions under this assignment:

(1) '3. The complaint fails to allege that the Defendant has breached any duty owing by the Defendant to the Plaintiff.'

(2) '5. The complaint fails to allege any causal connection between the operation of the Defendant's plant or mining operations and the overflowing of the creek on the lands of the Plaintiff.'

(3) '13. The complaint fails to allege that the negligent or wrongful conduct of the defendant's agents, servants, or employees was performed by them while acting in the line and scope of their employment as such.'

We will point out some rules of pleading which have application to the indicated contentions.

'When the averred facts show the relation of the parties and duty in the premises, a breach thereof may be pleaded by way of conclusion (Alabama Fuel & Iron Co. v. Bush, 204 Ala. 658, 86 So. 541; Mobile Light & R. Co. v. Ellis, 209 Ala. 580, 96 So. 773), and, when the facts are alleged out of which a duty arises, the pleading need not charge the conclusion that the duty existed. Maddox v. Jones, 205 Ala. 598, 89 So. 38.' Louisville & N. R. Co. v. Robinson, 213 Ala. 522, 105 So. 874, 875.

'A cause of action is made up of a duty and its breach. The duty--the relationship from which the duty springs--must be shown by the facts alleged; and the breach of the duty may be averred by way of a conclusion.' Alabama Fuel &amp Iron Co. v. Bush, 204 Ala. 658, 86 So. 541, 542.

'In actions of tort, when, in the complaint, the duty to act is shown, the negligent performance of that duty may be alleged in the complaint in the most general terms.' Sloss-Sheffield Steel & Iron Co. v. Prosch et al., 190 Ala. 290, 67 So. 516, 518.

'A simple negligence count of a complaint relying on the negligence of street railway employe, alleging that 'defendant's servants, agents, or employes in control or operating one of defendant's cars aforesaid over and along said railway,' negligently operated the same so as to cause the injury complained of, when construed with other allegations of defendant's ownership and operation of the railway at the place of injury, held to sufficiently allege that defendant's employes were acting within the scope of their employment.' Alabama Power Co. v. Stogner, 208 Ala. 666, 95 So. 151.

In the case at bar the complaint, in pertinent parts for this review, alleges:

'Plaintiff's said tract is devoted to farming uses, and said stream flows through plaintiff's pasture. The defendant owns land along the upper reaches and tributaries of said creek, above the lands of the plaintiff, on which it conducts mining or sand and gravel digging operations, and has so conducted the same for more than one year prior to the bringing of this suit.

'The plaintiff alleges that the agents, servants or employees of the defendant in charge of its said mining or digging operations have so negligently or wrongfully conducted the same as to cause the stream bed to be filled with muck or debris from the mining operations, thereby constituting an entrapment and danger to domestic animals; as to cause the creek to overflow repeatedly, thereby permanently depositing muck and debris from the mining operations on the lands of plaintiff and thereby damaging and rendering valueless much land of the plaintiff formerly valuable, to-wit; * * *

'And the plaintiff alleges that her said injuries were the proximate consequence of the negligence or wrongfulness of defendant's agents, servants or employees, as aforesaid and that the same were to her damage in the sum of Money as aforesaid, wherefore she sues.'

The recited averments of the complaint illustrate our view that the pleader adhered to the rules which are followed by our courts, or at least to the substantial extent that the complaint is not subject to the incompleteness and deficiency which the demurrers seek to point out.

The appellate courts of this State apply the rule which provides that any error in overruling demurrers to a complaint is rendered harmless to the defendant by undisputed proof of the omitted averments. Smith v. Tripp, 246 Ala. 421, 20 So.2d 870; Britling Cafeteria Co. v. Irwin, 229 Ala. 687, 159 So. 228; Birmingham Water Works Co. v. Barksdale, 227 Ala. 354, 150 So. 139; Ridgely Operating Co. v. White, 227 Ala. 459, 150 So. 693; Fagan Peel Co. v. Harrison Co., 16 Ala.App. 470, 79 So. 144.

The above rule is without application if the complaint is so drawn that it does not state a cause of action. John E. Ballenger Const. Co. v. Joe F. Walters Const. Co., 236 Ala. 548, 184 So. 275.

Assignments Nos. 2 and 3

Assignment No. 2 seeks our review on the action of the court in overruling an objection to a question to one of appellee's witnesses. The question was not answered. Kelley v. State, 32 Ala.App. 408, 26 So.2d 633; Malone v. State, 16 Ala.App. 185, 76 So. 469.

Assignment No. 4

A witness was asked: 'Approximately how many times has it (Little Bear Creek) overflowed in the past fifteen months?' Appellant's objections were overruled. The witness did not answer. The question was restated with slight variation. Without further objections the witness replied: 'I don't know. I never kept up with it, but it has overflowed two or three times anyway.'

Objections should have been reinterposed to the second question. However, to avoid any indication to be technical, we will review the matter.

The point is stressed that the inquiry included a period of time for which the plaintiff could not recover any damages on account of the overflow of the stream. The question indicates that the information sought covered fifteen months from the time of trial. The answer of the witness was very indefinite as to his knowledge of the overflows. The inquiry could have been made more certain by cross examination.

In any event it appears that the inquiry was pertinent on the authority of Alabama Consol. Coal & Iron Co. v. Vines, 151 Ala. 398, 44 So. 377.

All this aside, it was not disputed in the evidence that the stream did in fact overflow following every hard rain. Wilson v. State, 31 Ala.App. 21, 11 So.2d 563; Stallings v. State, 249 Ala. 1, 32 So.2d 233. The defendant's evidence did not refute this proof. The factual contentions centered around the question of whether or not the operations of appellant's plant caused the creek bed to fill with muck and mud and thereby caused more frequent overflows.

Assignment No. 5

Insistence is made here that the court should have sustained appellant's objection to a question propounded to one of appellee's witnesses. The witness finally answered, 'I would not say.' This reply was in no manner harmful to the objector. Minto v. State, 8 Ala.App. 306, 62 So. 376; Murray v. State, 17 Ala.App. 253, 84 So. 393.

Assignments Nos. 6 and 7

A witness for the appellant was 'How did the deposits of muck in 1948 compare with the deposit of sand in previous years?' After objections were overruled, the witness did not answer. Kelley v. State, supra; Malone v. State, supra.

The question was repeated in this form: 'How do the deposits from the overflow of the creek in 1948 compare with the deposits in previous years?' Objections were again interposed on the grounds that the query did not call for facts but rather a comparison. The objections were overruled and the witness replied: 'Well, I would say that the sand didn't have as much effect on the ground, what come on there was the muck covering up the grass.'

The latter ruling is made the basis of assignment No. 7.

The answer to this question should have been disallowed. The inquiry related to a material factual issue which was in dispute. The witness did not qualify as an expert, and his testimony in this aspect should have been confined to known facts and not conclusions.

The onus rests upon the appellant not only to show error by the record, but that such error probably injuriously affected his substantial rights. Garrett v. State, 248 Ala. 612, 29 So.2d 8; Brown v. State, 33 Ala.App. 152, 31 So.2d 652; Henderson v. Tennessee Coal, Iron & R. Co., 190 Ala. 126, 67 So. 414.

Just prior to the first question we have quoted...