Thompson v. City of Mobile

• Decision Date: 23 January 1941
• Docket Number: 1 Div. 110.
• Citation: 240 Ala. 523,199 So. 862
• Parties: THOMPSON ET AL. v. CITY OF MOBILE ET AL.
• Court: Alabama Supreme Court

199 So. 862

240 Ala. 523

THOMPSON ET AL. v. CITY OF MOBILE ET AL.

1 Div. 110.

Supreme Court of Alabama

January 23, 1941

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Action for damages by H. M. Thompson and H. Kelly, Jr., doing business under the name of Mobile Produce Company, against the City of Mobile and Sullivan, Long and Haggerty, a limited co-partnership, resulting from blockading plaintiff's premises in construction of a sewer. From a judgment of non-suit, plaintiffs appeal.

Affirmed.

The loss of anticipated profits occasioned by the temporary blockading of streets in front of place where plaintiff conducted a general produce and vegetable business during the construction by municipality of a sewer was "damnum absque injuria", in absence of showing that blockade was unnecessary or that it was negligently constructed, or that it was maintained for an unreasonable length of time, or that the work in constructing the sewer was not prosecuted with reasonable diligence. Const.1901, § 235.

The following are the demurrers filed by defendants:

Demurrer of Defendant, City of Mobile, to Complaint.

Comes the Defendant City of Mobile in the above styled cause, and demurs to the plaintiffs' complaint on the following separate and several grounds:

One: No compensable damages are sought therein.

Two: It does not appear therefrom that there was any unreasonable delay in the construction of the sewer described in the complaint.

Three It does not appear therefrom but what vehicles could approach the plaintiffs' store and have produce loaded on and unloaded therefrom at times between April 1, 1939 and November 30, 1939.

Four The damages sought are speculative in character and may not be recovered in this action.

Five: The damages claimed are so remote and speculative in character that a Court will not undertake to fix them.

Six: It does not appear therefrom that the Defendants were under any duty to keep the Plaintiff's premises accessible to traffic during the time in question.

Seven: For aught that appears therefrom the plaintiffs had access to their property through other routes or means.

Demurrer of Defendant, Sullivan, Long & Haggerty, to the Complaint.

Comes the defendant Sullivan, Long & Haggerty, a limited copartnership, and demurs to the plaintiffs' complaint on the following separate and several grounds:

(1) No compensable damages are sought therein.

(2) It does not appear from complaint that there was any unreasonable delay in the construction of the sewer described in the complaint.

(3) It does not appear from the complaint that vehicles could not approach the plaintiffs' store and have produce loaded on and unloaded therefrom at times between April 1, 1939 and November 30, 1939.

(4) The damages sought to be recovered are speculative in character and may not be recovered in this action.

(5) The damages claimed are so remote and speculative in character a court will not undertake to fix them.

(6) It does not appear that the defendants were under any duty to keep the plaintiffs' premises accessible to traffic during the time in question.

(7) For aught that appears in the complaint the plaintiffs had access to their property through other routes or means.

(8) It is not shown in the complaint that the defendant owed any duty to the plaintiffs to correct the matters complained of.

(9) It expressly appears in the complaint that the defendants Sullivan, Long & Haggerty were employed by the City of Mobile to construct a larger sewer down Government Street and from aught that appears in the complaint the work undertaken in pursuance of the employment was a proper municipal undertaking for which no recovery for losses such as those complained of by the plaintiff might be had against either the City of Mobile or these defendants.

(10) Because the allegations of the complaint show that the work done and made the basis of the plaintiff's complaint was done in pursuance of a contract of employment entered into with the City of Mobile for the construction of a sewer.

(11) Because the complaint shows on its face that the damages complained of were occasioned by work of such nature as a city may do without liability to plaintiffs injured in a manner such as that described in the complaint.

George A. Sossaman, of Mobile, for appellants.

Harry Seale, of Mobile, for appellee City of Mobile.

McCorvey, McLeod, Turner & Rogers, of Mobile, for appellee Sullivan, Long & Haggerty.

KNIGHT Justice.

This action was brought by the appellants, plaintiffs in the court below, against the City of Mobile and against Sullivan, Long and Haggerty, a limited partnership, to recover damages for certain alleged wrongs committed and done by the appellees.

It is averred in the complaint, which consisted of a single count, that on April 1st, 1939, the plaintiffs were in the possession of certain property on the north side of Government Street in the City of Mobile, with the exclusive right to the possession thereof until November 1st, 1939, and was then and there conducting a general produce and vegetable business thereon; that as a part of their said business it was necessary for the plaintiffs to have the free access to the building from the street for the purpose of loading and unloading produce and vegetables "into and out of said store." That on or about April 1st, 1939, the City of Mobile undertook to construct a large sewer down Government Street in front of said property and employed the said Sullivan, Long and Haggerty, contractors, to construct said sewer; that in constructing said sewer the defendants blockaded the front of plaintiffs' premises so that it was impossible for vehicles to approach plaintiffs' store to load and unload their produce and said blockade continued from April 1st, through November 30th, 1939. Plaintiffs aver that as a proximate result of said blockade their business was greatly hindered and lessened, customers left it, all because plaintiffs were unable to use their store in the ordinary course of their business; that on July 1st, 1939, plaintiffs removed their business to another location because they were unable to continue at that location on account of said blockade; and that they lost the entire use of said building from July 1st, 1939, through October 31st, 1939.

To this complaint the two defendants separately demurred, assigning a number of grounds. These demurrers appear in the report of the case.

The court sustained the demurrer filed by each of the defendants, and thereupon the plaintiffs suffered a nonsuit, with appeal upon the record.

In brief of counsel for appellants the following statement is made at the outset of his argument: "The sole question to be decided is whether or not a municipal corporation is liable to an abutting property holder when it blockades the streets for the purpose of repairing same and thereby causes injury and loss of business to the property holder. There is no question of negligence or lack of diligence involved in this case. For the purpose of this argument it may be conceded that the City of Mobile constructed the sewer in a proper manner and without delay."

It is also stated in brief that "The reason that the contractor was made a party in this suit is that Section 2030 of the Code requires that the party doing the injury be joined with the city and if he be not joined, then the plaintiff shall be nonsuited." It is also conceded that if the city is not liable in damages to appellant, neither is the contractor.

On demurrer, we must construe the complaint most strongly against the pleader, and, therefore, we must assume that the City of Mobile was proceeding in the lawful exercise of municipal power and anthority in making the improvement, and the only question here presented is whether, in exercising that power, it violated any property right of the plaintiffs, for which under Section 235 of the Constitution it, the city and the contractor, became liable in damages to the plaintiffs.

It may be stated in the outset that a municipal corporation is not liable in damages for any consequential injuries to private property, resulting from the construction of duly authorized public improvements, where there has been no negligence or want of care or skill, in the absence of constitutional or legislative provisions imposing liability in such cases. 44 Corpus Juris, p. 423, § 2631; Northern Transp. Co. v. Chicago, 99 U.S. 635, 25 L.Ed. 336; Simmons v. Camden, 26 Ark. 276, 7 Am.Rep. 620; Durand v. Ansonia, 57 Conn. 70, 17 A. 283; City of Macon v. Daley, 2 Ga.App. 355, 58 S.E. 540; City of Kokomo v. Mahan, 100 Ind. 242; Goodrich v. Otego, 216 N.Y. 112, 110 N.E. 162; City of Cincinnati v. Penny, 21 Ohio St. 499, 8 Am.Rep. 73; Alexander v. Milwaukee, 16 Wis. 247; City Council of Montgomery v. Maddox, 89 Ala. 181, 7 So. 433.

The pertinent provision of Section 235 of our Constitution provides:

"Municipal and other corporations and individuals invested with the privilege of taking property for public use, shall make just compensation, to be ascertained as may be provided by law, for the property taken, injured, or destroyed by the construction * * * of its works, highways, or improvements * * *." (Italics supplied.)

In our recent case of Alabama Power Company v. City of Guntersville, 235 Ala. 136, 177 So. 332, 339, 114 A.L.R 181, after a full review of many authorities as to what constituted a taking, injuring or destroying of property within the meaning of the constitutional provisions which require that just compensation shall be first made to the owner for such taking, injuring or destroying, we adopted the following rule of liability, viz: "That just compensation must be made by municipal...