City of Birmingham v. Kircus

SAMFORD, J. It is now the established law of this state, based on ‘“reason, demanded by justice and supported by a preponderance of authority,” that a municipal corporation acts ministerially, and is responsible for actual damages caused by the careless and negligent manner in which it discharges its dúty in erecting and maintaining sewers and drains for the control of water falling or flowing on its streets. City Council of Montgomery v. Gilmer et al., 33 Ala. 116, 70 Am. Dec. 562. And it has many times been held by this court and by the Supreme Court that negligence in the performance of a duty charged in a complaint may be alleged in the most general terms, without defining the quo modo. S. A. L. Ry. v. Emfinger, 16 Ala. App. 265, 77 South. 415. That *617 part of tile decision, in the City of Montgomery Case, supra, quoted by appellant in brief, has no application to the case at bar. The question in that case was whether the allegation that the act was wrongful and unjust, was a conclusion of law, while here the allegation is negligence. In the case cited the court drew and pointed out this distinction. The first and second grounds of demurrer were general and the seventh was not well taken. Any error that may have been by reason of the fifth ground was corrected by the subsequent ruling of the court on the admission of the evidence and in its charge to the jury. The allegations of the complaint meet the objections claimed in the sixth and eighth grounds. As to the third and fourth- grounds, it is alleged in the complaint that the injury occurred at a time when plaintiff was the owner. While it is the law that, if a former owner of the lot gave to the city or the city acquired by condemnation or other legal method from a former 'owner the right to build and maintain the sewer as built, and it did so build and continued to maintain same, and such sewer or drain was there when plaintiff bought the lot. and there was no change in the structure or negligence in its maintenance so as to increase the flow of water, the plaintiff could not recover in this action; hut this is expressly held to be a defense, and must be l>leaded and proved. Mayor and Councilmen of Union Springs v. Jones, 58 Ala. 654. However, for the city to have acquired the right to build and maintain a sewer diverting and concentrating water in increasing quantities onto property, to its damage, without being liable in a proper suit, the right must have been legally acquired, either by condemnation, as in City of Montgomery v. Townsend, 80 Ala. 489, 2 South. 155, 60 Am. Rep. 112, or by purchase or gift, as in Mayor, etc., v. Jones, 58 Ala. 654; Mayor v. Coleman, 58 Ala. 570. The demurrer to the complaint was properly overruled. The court did not err in admitting plaintiff’s deed to the lot, in evidence. While the description in the deed begins, “A lot fronting 50 feet,” etc., the language immediately following in the same paragraph corrects this, and correctly describes the lot described in the complaint. There was no prejudicial error in the court’s rtaling permitting the witness Kircus to testify that the costs of repairing the house as a result of the damage was $35. This is not the measure of damage to which the plaintiff is entitled, but would tend to shed some light as a basis upon which the true damage might be ascertained. Even if this was technical error, there could be no prejudice to defendant as to its substantial rights. A map made by a competent engineer showing the location, contour, and topography of the premises involved in the suit is, when testified to by him as being correct, admissible in evidence in aid of a proper understanding of the testimony. Sudduth v. Central R. R. Co., 261 Ala. 56, 77 South. 350; Greenwood Cafe v. Walsh, 15 Ala. App. 519, 74 South. 82; Humes v, Bernstein, 72 Ala. 546. In his closing argument to the jury one of plaintiff’s counsel made use of the following appeal to the jury: “Gentlemen of the jury, you are the ones to make • the great city of Birmingham stop imposing on the people as shown in this case; you only can punish the city, and you are to take it home to yourselves and put yourselves in the position of this plaintiff, and do by hel-as you would be done by, and if you don’t I tell you that within the next 24 hours you likely will be the next victim of the imposition of the city, and then don’t come around and cry about it, because if you find for the defendant in this case you thereby stamp your approval upon these impositions by the city of Birmingham.” This excerpt was objected to by defendant, and exception reserved. The action of the court in overruling this objection was also made one of the grounds for a new trial. Punitive damages were not recoverable in this suit. City Council of Montgomery v. Gilmer, 33 Ala. 116, 70 Am. Dec. 562. Such damage was not claimed in the complaint,- and the court correctly charged that the city was not liable to punishment, and that the only damage recoverable was and must be compensatory. The argument of counsel was therefore uncalled for, unwarranted, and illegal, and should have been excluded at the time it was uttered. The foregoing being admitted, the question is how far the subsequent action of the court cured the error, or>, if not cured, did the argument used probably affect the result of the trial. The effort of counsel was to impress upon the jury that the government of Birmingham was unjust and tyrannical. The verdict returned by them was for $500, which the court recognized as grossly excessive by reducing by half, and the plaintiff recognized by accepting the reduction and entering a remittitur. There was no effort made by the court to eradicate from the minds of the jury the evil effect of the argument on^ the minds of the jury. There can be no doubt that the jury was led by some influence aside from the charge of the court and the evidence as given on the trial to return a verdict in excess of compensatory damages. So far as this record shows, the argument above quoted is the only other influence in the trial. The error was prejudicial, and its assignment was good ground for new trial. Brotherhood of Painters, etc., v. Trimm, 207 Ala. 587, 93 South. 533; B. R. L. & P. Co. v. Drennen, 175 Ala. 338, 57 South. 876, Ann. Cas. 1914C, 1037, The trial judge recognized this, and attempt- *618 ect ,to cure the harm done by himself fixing the recovery at .$250, being the lowest estimate of damage as testified to by plaintiffs witness, 'but who can say that the influence did not enter into verdict in its finding for the plaintiff? When the damage caused • by the erection of a dam or sewer diverting or concentrating the water from its natural flow is .recurring, the right of action for each recurring injury is in the owner of the land at the tinie the injury results. 27 R. C. L. p. 1117, § 47, note 14. Where the injury is permanent, by a casual or recurrent overflow of water on lapd, the measure of damages is the difference between the market value of the land with and without the injury at the time thereof. I. A. Corp. v. Abercrombie, .192 Ala. 50, 68 South. 873. But in .cases of temporary or occasional injuries, and where the damage may be repaired at less costs than the diminution in value, the measure of damages is the costs of restoring the land to its former condition. 27 R. C. L. p. 1122, § 51, note 2; Sloss-S. S. & I. Co. v. Mitchel, 181 Ala. 576, 61 South. 934. There was evidence as to this cost, and hence charges based upon a contra theory were properly refused. Parties. are only entitled to a new trial on the ground of newly discovered, evidence where they have shown diligence in an effort to prepare their cases with respect to' the evidence offered. Granting that the evidence tendered as newly discovered evidence is relevant and admissible, the defendant had the records, and defendant’s engineer might have made a survey of the premises as well before as after the trial. For the error pointed out, the judgment is reversed, and the cause is remanded. Reversed and. remanded.