126 So. 616 | Ala. Ct. App. | 1929
Lead Opinion
Action by J. M. Norwood (appellee) against the city of Birmingham (appellant) for damages caused by stoppage or obstruction of sanitary sewer of city of Birmingham, whereby the basement in plaintiff's home was flooded with water, etc.
The plaintiff's home was situated in that part of Birmingham known as West End, and which was formerly the town West End. The undisputed evidence showed that the particular sewer which became obstructed was "built by the Elyton Land Company before West End came into Birmingham, so that part of the sewerage system was inherited by the City (of Birmingham) when the greater Birmingham bill was passed and their control passed to the City of Birmingham." The town of West End was annexed to the city of Birmingham in 1909 by legislative enactment, Acts Sp. Sess. 1909, p. 392. There was no evidence that the city of Birmingham, since the annexation of West End, had changed the condition of this sewer, or had made or undertaken to make any changes, improvements, or alterations in the sewer, or to reconstruct the sewer.
It is settled in this state that, in the exercise of its statutory powers to construct and maintain a system of sewers and drains, a municipal corporation acts ministerially, and that, for damages proximately resulting from negligence in the construction or maintenance of sewers and drains, a municipal corporation must respond in damages to the injured party. City of Birmingham v. Kircus,
Appellant relies upon the court's rulings in the cases of Campbell v. City of Vanceburg (Ky.)
The complaint alleges that, as a proximate consequence of an obstruction or stoppage in the city's sewer, the basement of plaintiff's home, which was served by the city's sewer, through a private sewer running from plaintiff's home to the city sewer, was flooded with water and foul sewerage, etc., to a depth of several feet. In an attempt to charge liability to the city for said injuries, the plaintiff alleges "that said stoppage or obstruction was the proximate consequence of said city's negligence in not exercising reasonable care to keep said city sewer free of stoppage or obstruction, or in failing to remove said stoppage or obstruction within a reasonable time after plaintiff informed it of said flooding of his said premises."
Actionable negligence is thus attempted to be set forth by alternative averments of negligent conduct. Appellant, by appropriate demurrer, challenged the sufficiency of each of the alternatives. Where a complaint sets out the grounds of recovery in the disjunctive, each alternative allegation must be sufficient, Donaldson v. Foreman,
It was incumbent upon the plaintiff, in order to maintain the action, to aver and prove express notice of the alleged defect in the sewer, or facts from which it might be inferred that the corporate authorities were properly chargeable with constructive notice thereof. Arndt v. City of Cullman,
The requirement of notice, of course, has no application where it is alleged that the injuries were received as a proximate consequence of a negligent construction of the sewer, as was the case in City of Jasper v. Barton,
The second alternative allegation of negligence is sufficient to show notice to the defendant of the alleged obstruction or stoppage, but we are of the opinion that under the decision of the Supreme Court in Arndt v. City of Cullman,
In that case, count 1, claiming liability "for the failure of the defendant to exercise reasonable care, skill and diligence in keeping a drain or sewer across First Avenue West, along or near Second Street, in proper condition," and count 6 asserting liability for that "defendant negligently allowed its culvert to fill partially from the washings of sand and loose rock and timber, to obstruct the free passage of water, so as to be insufficient for the passage of water during rainfalls," etc., were held defective for failure to sufficiently allege notice to the corporate authorities of the existence of the improper condition or obstruction of the sewer.
We therefore hold that the trial court erred in overruling the demurrer to the complaint, challenging as it did the insufficiency of the complaint in the respect above mentioned.
Among the items of damages claimed by the plaintiff was a hotel bill alleged to have been incurred by the plaintiff in the housing of himself and members of his household during a time when his home was uninhabitable as a result of the sewerage in the basement of his home. Over appropriate objection and exception of the defendant, the plaintiff was allowed to prove this expenditure. And no subsequent proof being made that the expenditure was reasonable for the hotel service received, defendant moved the exclusion of this testimony, which motion was denied and defendant excepted. Assignment of error is made of these rulings, and also of the action of the trial court in refusing to give to the jury written charges numbers 27 and 28, requested by defendant, which were instructions that the jury could not award the plaintiff damages for hotel expenses. Conceding, but not deciding, that the hotel bill was a recoverable item of damages if proven to be necessary and reasonable, it is clear that no recovery could be had unless the expense was proven to be reasonable in amount for the hotel service received. Birmingham Amusement Co. v. Norris,
Reversed and remanded.
Addendum
The decision rendered by the Supreme Court on certiorari January 25, 1930,
Affirmed conditionally.