84 So. 845 | Ala. | 1920
The complaint, as originally filed in one count by Charles and Barbara Macher, husband and wife, was for the negligence of defendant in the operation of its manufacturing plant to their damage.
Before or on the second trial amendment was made by striking as a party plaintiff Charles Macher (Brookside-Pratt Mining Co. v. McAllister,
The gravamen of the count on which the trial was had (3) was that in the operation of its cotton oil plant in question "defendant wrongfully caused to go or be upon the tract of land occupied by plaintiff as" her residence "noxious or offensive dust, lint, debris, smells, fumes, smoke vapors, odors or other injurious or noxious substances to such an extent as that and as a proximate consequence thereof there was produced material annoyance and inconvenience to the plaintiff as the occupant of said dwelling house and of said premises occupied by her as aforesaid and causing physical discomfort to plaintiff in such sort as to amount to a nuisance, and as a proximate consequence of said nuisance the said dwelling house and premises occupied by plaintiff were rendered less wholesome, healthful, and comfortable as a place of residence and less desirable for occupancy and use to plaintiff," etc. A catalogue of plaintiff's alleged damage' is set up as the proximate consequence of said alleged wrongs or the maintenance of said nuisance.
Over plaintiff's objection defendant was allowed to give evidence tending to show the value of several of the products of its plant in question. Due objections were interposed and exceptions taken to the adverse rulings of the court thereon. Same are challenged by assignments of error and insisted upon in argument of counsel. The value per ton of products of defendant's manufacturing plant referred to in the testimony as "fiber" and "hull bran stuff" was immaterial to the issue of the maintenance of a nuisance vel non seriously impairing plaintiff's use of her dwellings, contiguous or adjacent to said manufacturing plant. In the occupancy of her dwellings, if interfered with by defendant in the operation of its manufacturing plant, in such wise as to become a nuisance to plaintiff's said use of her lands and home for herself and her tenants, this gave rise to her personal right of action sought to be maintained. Her suit for damages should not be confused with the utility of the company's service in the production of a needed article of commerce, however valuable it may be. Such evidence tended to institute an unwarrantable comparison of the use or occupancy of the properties in question of the respective litigating parties and ignored the reason and justice underlying the maxim of, "Sic utere tuo ut alienum non lædas." A. G. S. R. Co. v. Crocker,
We may observe of the evidence that it was in conflict as to the emission and deposit of the matter complained of upon or over plaintiff's dwellings and the premises on which the same stood.
Defendant requested in writing, and was given, charge 17, that "the burden of proving negligence in this case is on the plaintiff." The question of a negligent operation of defendant's plant was not litigable under the count on which submission to the jury was had. The two counts presenting as an issue of fact the negligence vel non of defendant were withdrawn by the plaintiff before the jury was charged. The pleas to count 3 were the general issue and the statute of limitations. Hence no question of negligent operation, was presented (Cent. of Ga. Ry. Co. v. Windham,
Such a charge was highly prejudicial, declaring, as it does, the duty to be on plaintiff to establish some negligence on defendant's part in creating the condition of which complaint was made and redress sought by the instant suit. The charge was not merely misleading and, as insisted by appellee (Howton v. Mathias,
For the giving of said charge and the ruling on evidence admitting testimony of value of the several products of defendant's plant, the cause will be retried.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.
