Terrell v. Alabama Water Service Co.

• Decision Date: 21 October 1943
• Docket Number: 6 Div. 88.,6 Div. 87
• Citation: 245 Ala. 68,15 So.2d 727
• Parties: TERRELL v. ALABAMA WATER SERVICE CO. (two cases).
• Court: Alabama Supreme Court

15 So.2d 727

245 Ala. 68

TERRELL v. ALABAMA WATER SERVICE CO. (two cases).

6 Div. 87, 6 Div. 88.

Supreme Court of Alabama

October 21, 1943

Rehearing Denied Dec. 16, 1943.

Appeal from Circuit Court, Jefferson County; J Edgar Bowron, Judge.

Walter S. Smith, of Birmingham, for appellants.

London & Yancey, Geo. W. Yancey, and Fred G. Koenig, Sr., all of Birmingham, for appellee.

FOSTER, Justice.

Many of the questions presented on this appeal relate to the contention that a defendant is liable for damages proximately resulting from an alleged nuisance in a public road or highway, which he did not actively create but had not remedied when he owed plaintiff a duty to do so, without regard to the inquiry of whether he was negligent in its creation or maintenance, and without regard to the question of whether plaintiff was also negligent proximately contributing to his own injury.

The contention is better understood by observing that defendant has and maintains a water pipe line along the outside edge of the public road in question. It is not alleged nor contended that this is without legal authority. At the point in question the pipe had sprung a leak, resulting in water flowing across the paved roadway, as did rain and seep water. This water froze and made the road slick and dangerous for passage by automobile, at the time in question. It is claimed that as a consequence plaintiff was injured.

The case was tried on counts 1, 2, 6 and 7. Counts 1 and 2 allege that defendant negligently permitted such condition. Counts 6 and 7 allege that defendant permitted or allowed that condition to exist and thereby created and maintained a nuisance with knowledge or notice of such dangerous condition, without alleging that he negligently or intentionally did so.

The question here is not on the sufficiency of those counts of the complaint. The court overruled demurrer to them, and there was a verdict for defendant. The court in various rulings held that negligence of defendant is a necessary element in all the counts. Also that plaintiff's contributory negligence, if it occurred, would be a good defense, as in other cases when negligence is the foundation of an action.

This controversy relates more particularly to counts 6 and 7 since counts 1 and 2 are based on an allegation of negligence (City of Montgomery v. Stephens, 14 Ala.App. 274, 69 So. 970), whereas counts 6 and 7 do not use that term. The court drew no distinction between them in this respect ruling that negligence of defendant is an element of the claim. So that the question more specifically is whether the cause of action described in counts 6 and 7 is dependent upon negligence by defendant.

If negligence is a necessary element of the cause of action, it was not erroneous thus to charge the jury, though it was not alleged. If he was not negligent in fact and the cause of action so set up is dependent upon negligence as a necessary element, plaintiff cannot complain that the court so ruled.

He insists that negligence was not an element of the cause of action set up in counts 6 or 7; nor in counts 1 and 2, though so alleged in them.

In this connection, we find the following principles well settled:

Negligence and nuisance are distinct torts. They may be different in their nature and consequences. But in either event there must be a breach of duty owing by defendant to plaintiff. Upp v. Darner, 150 Iowa 403, 130 N.W. 409, 32 L.R.A., N.S., 743, Ann.Cas. 1912D, 574.

The liability for negligence is based on a want of proper care. And as a general rule liability for nuisance does not depend upon the question of negligence, and may exist although there is no negligence. Yolande Coal & Coke Co. v. Pierce, 12 Ala.App. 431, 68 So. 563, certiorari denied 193 Ala. 687, 69 So. 1021; Beam v. Birmingham Slag Co., 243 Ala. 313, 10 So.2d 162. However a nuisance may be and frequently is the consequence of negligence, or the same acts or omissions which constitute negligence may give rise to a nuisance. 39 Am.Jur. 304-306, sec. 24. One of the most illuminating authorities on the subject is the case of McFarlane v. Niagara Falls, 247 N.Y. 340, 160 N.E. 391, 57 A.L.R. 1. We quote as follows from the opinion: "If danger there was, then also there was nuisance, though nuisance growing out of negligence. Nuisance as a concept of the law has more meanings than one. The primary meaning does not involve the element of negligence as one of its essential factors. Heeg v. Licht, 80 N.Y. 579, 36 Am.Rep. 654, 11 Mor.Min.Rep. 74. One acts sometimes at one's peril. In such circumstances, the duty to desist is absolute whenever conduct, if persisted in, brings damage to another. 21 Laws of England (Halsbury) p. 507, § 845. Illustrations are abundant. One who emits noxious fumes or gases day by day in the running of his factory may be liable to his neighbor though he has taken all available precautions. McCarty v. Natural Carbonic Gas Co. 189 N.Y. 40, 81 N.E. 549, 13 L.R.A., N.S., 465, 12 Ann.Cas. 840. He is not to do such things at all, whether he is negligent or careful. One who digs a hole in the highway will not be heard to say, if he dug it without license, that the guards placed about it were destroyed without his fault. Congreve v. Smith, 18 N.Y. 79; Wolf v. Kilpatrick, 101 N.Y. 146, 4 N.E. 188, 54 Am.Rep. 672. He was a wrongdoer in digging, and diligence in guarding does not eradicate his fault. Other situations there are, however, where what was lawful in its origin may be turned into a nuisance by negligence in maintenance. The coalhole, built under a license, may involve a liability for nuisance, if there is negligence in covering it. Village of Canandaigua v. Foster, 156 N.Y. 354, 50 N.E. 971, 41 L.R.A. 554, 66 Am.St.Rep. 575. The tumble-down house abutting on a highway is transformed into an unlawful structure if its ruinous condition is a menace to the traveler. Timlin v. Standard Oil Co., 126 N.Y. 514, 27 N.E. 786, 22 Am.St.Rep. 845. In these and like situations, the danger, being a continuing one is often characterized as a 'nuisance,' though dependent upon negligence. Indeed, one of the most familiar instances of nuisance is a highway out of repair. Pollock, Torts, 10th Ed. p. 1016. Narrow, too, is the line between nuisance and negligence. One can create a nuisance by leaving a wagon in the street. Cohen v. New York, 113 N.Y. 532, 21 N.E. 700, 4 L.R.A. 406, 10 Am.St.Rep. 506."

If defendant's acts are inherently wrongful or in violation of law and create a nuisance, regardless of the diligence observed, there is no element of negligence necessary. Congreve v. Smith, 18 N.Y. 79. But if defendant's affirmative conduct did not constitute a nuisance, and it was not prohibited by law, but the nuisance arose because of some omission to act, then it is based on a negligent or intentional omission of that duty, and does not exist if defendant exercised due care under all the circumstances (authorities supra).

So that if defendant in this action created the nuisance or maintained it, it was because he "permitted or allowed" it to exist. But if defendant did not by an affirmative act create it, and does not by affirmative act continue it, to be charged with it, his permission and allowance must have been without the exercise of due care. If under those circumstances defendant did all that due care required, he was not an insurer of the safety of the place which he did not affirmatively make unsafe. So that the inherent nature of the cause of action in counts 6 and 7 is that it was a nuisance caused by the negligent failure of defendant to remedy an unsafe condition of which he had notice or in the exercise of due care should have had notice, but which he did not by affirmative act render unsafe, or by such act continue it so. His only breach of duty could have been in the failure to act; to show negligence is therefore the least burden which the law places on plaintiff. Of course, if defendant, with notice, intentionally, left the dangerous condition without taking any care to remedy it, that would be a breach of duty.

It is true that under counts 6 and 7 plaintiffs could have sustained a claim upon proof that defendant with notice of the dangerous condition intentionally took no steps to remedy the danger, but such failure is only an omission to act, when due diligence would require such action.

This reasoning is consistent with our case of Crommelin v Coxe, 30 Ala. 318, 68 Am.Dec. 120. In that case the court noted that in continuing a nuisance by omitting to reform...