Water Works and Sewer Bd. of Fairhope v. Brown, 1 Div. 771

• Citation: 268 Ala. 96,105 So.2d 71
• Decision Date: 11 September 1958
• Docket Number: 1 Div. 771
• Parties: WATER WORKS AND SEWER BOARD OF the City of FAIRHOPE, v. M. L. BROWN et ux.
• Court: Supreme Court of Alabama

Page 71

105 So.2d 71

268 Ala. 96

WATER WORKS AND SEWER BOARD OF the City of FAIRHOPE, v. M. L. BROWN et ux.

1 Div. 771.

Supreme Court of Alabama.

Sept. 11, 1958.

J. B. Blackburn and Beebe & Swearingen, Bay Minette, for appellant.

Johnston, McCall & Johnston, Mobile, and Chason & Stone, Bay Minette, for appellees.

MERRILL, Justice.

Appellees brought suit against City of Fairhope and the Water Works and Sewer Board of the City of Fairhope for damages to their home caused by its flooding with sewage. The trial court gave the general charge for City of Fairhope, and submitted the cause to the jury as to appellant. The jury returned a verdict in favor of appellees for $1,500.

This cause was here previously as the result of a nonsuit taken by the present appellees when the demurrer to their complaint was sustained. We reversed and remanded, Brown v. City of Fairhope, 265 Ala. 596, 93 So.2d 419. The cause was tried on the identical counts as set out in that case and we will not reproduce them here.

Appellant contends that additional grounds of demurrer filed to the complaint were improperly overruled. No grounds of demurrer are argued as to Count One. All of the grounds argued in brief are to Count Two. They raise the question that Count Two does not allege that appellant had knowledge of any defect in its sewer system or that such defect had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of appellant. It is appellant's contention that the complaint should substantially follow the language of Title 37, § 502, Code 1940, which relates to the liability of a municipality for negligent acts of its agents, servants or employees.

On the previous appeal we held the complaint stated a good cause of action and we adhere to that opinion. It is sufficient to state that the additional grounds of demurrer argued on this appeal were properly overruled. In City of Bessemer v. Chambers, 242 Ala. 666, 669, 8 So.2d 163, 165, we said:

'* * * While by section 502, Title 37, supra, the neglect, carelessness or unskillfulness must be that of an agent, officer or employee of a city, a count charging such negligence to the city is sufficient compliance. This was held in City of Birmingham v. Norwood, 220 Ala. 497, 126 So. 619.'

The other argued assignment of error charges that the court erred in refusing the appellant's written requested affirmative charge with hypothesis. It is urged that this charge should have been given for the reasons that there was a variance between the allegations and the proof and appellees failed to prove the allegations of either count of the complaint.

As to the variance, appellant states that the complaint charges that both the City of Fairhope and the Water Works and Sewer Board or their agents or employees negligently caused damage to appellees' property. Appellant then argues that since the general charge was given for the City of Fairhope, there was no evidence that the city negligently did anything, or that any employees who may have been negligent were employed by both defendants. Both our statute and case law reject this contention. Title 7, § 139, Code 1940, provides:

'When a suit is instituted against several defendants, whether sued as partners or otherwise, the plaintiff may recover against one or more, but is liable to costs to those against whom he does not obtain judgment.'

The distinction between joint and separate liability is clearly explained in F. W. Woolworth Co. v. Erickson, 221 Ala. 5, 8, 127 So. 534, 536:

'Appellant insists it was entitled to the affirmative charge.

'One theory for this insistence rests upon a failure of proof or a fatal variance. The proof showed that the store was that of appellant, and defendant Sprague was in its employ as manager. Counsel for appellant insist that the complaint shows a joint operation of, or a joint proprietorship in, the store, and therefore a joint duty and liability, and that as the proof discloses an operation of the store by defendant Woolworth Company only, there could be no liability against either defendant. Conceding (without deciding) the correctness of this construction of the complaint, the result insisted upon does not follow.

"It is a well-settled rule of law that in actions of tort against two or more defendants jointly, where the proof fails as to any one, a verdict may be rendered against the other or others as to whom the proof is sufficient without thereby in law constituting a variance.' Southern Ry. Co. v. Arnold, 162 Ala. 570, 50 So. 293, 295. 'In actions ex delicto a joint liability need not be proved, and consequently a misjoinder of defendants will not defeat a recovery against any or either proved guilty.' Lovelace v. Miller, 150 Ala. 442, 43 So. 734, 735, 11 L.R.A.,N.S., 670, 14 Ann.Cas. 1139. Section 5720, Code 1923, authorizes a recovery against one or more defendants jointly sued. Rich v. Brewer, 205 Ala. 343, 87 So. 323.

'As to suits on joint contract a different rule prevails (Haines v. Cunha, 217 Ala. 73, 114 So. 679), and in actions of tort there is an exception to the general rule where the action is for a negligent performance of, or a negligent failure to perform, a duty arising out of a contract. In such case the averment of the contract from which the alleged duty springs is made a material allegation which must be proven, as charged, or else a fatal variance results. Hackney v. Perry, 152 Ala. 626, 44 So. 1029; Coal City Mining Corporation v. Davis, 17 Ala.App. 22, 81 So. 358.

'But the instant case comes within the general rule and not the exception thereto. The affirmative charge requested upon a contrary theory was properly refused, as well also several special charges resting upon a like theory, and as to which we deem separate treatment unnecessary.'

Appellant contends that neither count was proved because of the failure to prove that 'the sewer system was jointly operated by the two defendants' or that 'the servants, agents or employees referred to in said counts were the servants, agents or employees of both defendants.' These contentions have already been answered adversely to appellant in the discussion of the alleged variance.

There was evidence, if believed, to support the verdict. The cause was properly submitted to the jury. There was no motion for a new trial. In Street v. Street, 246 Ala. 683, 688, 22 So.2d 35, 39, it was said:

'The authorities are to the effect that, when considering the general charge requested and refused, the question of the weight of evidence is not before the Supreme Court, in the absence of a motion for new trial predicated thereon. The...