J. P. Morgan Paving Co. v. Shoemaker

SOMERHILHE, J. The demurrer attacks the complaint for its alleged joinder of two distinct causes of action in a single count, viz. the maintenance of an asphalt mixer and boiler, and also the keeping of a large number of mules, in close proximity to plaintiff’s house. The theory of the demurrer is that these aie separate and distinct nuisances in operation and effect, and the principle invoked is that laid down in Iron City Mining Co. v. Hughes, 144 Ala. 608, 42 So. 39 : “While, under our system of pleading as well 'as under the common law, counts for distinct and independent torts, of the same nature, and upon all of which the same judgment was to be given, could be joined in separate counts in the same action, there is no law permitting the plaintiff to unite in one count several torts, constituting distinct and separate causes of action.” There is nothing in the complaint, however, to indicate an intendment of separate and distinct nuisances with respect to the mixer and the mules; and we think the reasonable meaning of the whole complaint is that the two things operated conjointly to make defendant’s place a single nuisance, not-1 withstanding the several stated factors contributing to that result. The complaint refers to a. single place and a single nuisance, and not to several, and we think the point of the demurrer is too finely drawn and too technical for -the practical purpose of justice. It was properly overruled. The plaintiff offered no evidence of permanent injury to his home as a result of the nuisance, but was allowed to show its decreased rental value during the 12 months preceding the filing of the suit. This evidence was objected to by defendant on the theory that it was variant from the complaint under which (the insistence is) damages are claimed only for permanent injury, to which the proof and recovery must be limited. We cannot agree with this view of the complaint. It alleges that the smoke, dust, foul odors, and noises described, have caused plaintiff and his family “inconvenience, annoyance, discomfort, and injury, and has rendered plaintiff’s home and building in which he resided less valuable; and plaintiff’s sleep has been disturbed, and his peace and comfort have been destroyed in his own home.” Even conceding that the italicized clause should be construed as an allegation of permanent injury, other items of damage are claimed which authorize proof of decreased rental value of the home. City of Eufaula v. Simmons, 86 Ala. 515, 6 So. 47. As noted in that case, permanent injury may be waived, and is waived, by the piaintiff’s election to prove decreased rental value for the period of recoverable injury. Here, however, the nuisance alleged and proved was clearly an abatable one, and the injuries were in their nature transient only. See, also, Steel Cities Chem. Co. v. Jenkins, 17 Ala. App. 221, 84 So. 408. But we db not think that the italicized allegation, whether considered alone or in relation to the other parts of the complaint, is necessarily to be construed as a claim for permanent injury to the freehold; for, when a home is rendered “less valuable” by such disturbances, the impairment intended is evidently in the current use of it, and not in its selling price as affected by a permanent injury. This view of the complaint disposes of numerous assignments of error based upon the assumption that allegation and proof were limited to permanent injury to the freehold or its enjoyment. *627 Plaintiff testified to the difficulty of getting room renters after defendant’s operations began, and that the rooms had practically no rental value. Defendant’s witness Sharhutt testified that he occupied the house in question, as a renter after plaintiff left it, in the fall of 1923 (a year or more after plaintiff had suffered the damage complained of), and defendant proposed to show by him that he had rented rooms to lodgers, and had no difficulty in doing so. At that stage of the trial, if indeed at any, it had not been shown that conditions were the same as during the period to which plaintiff had testified, and hence the proffered testimony was clearly irrelevant. As plaintiff offered no evidence of permanent depreciation in the value of his property, and chose to claim for its decreased rental value instead, the nuisance being clearly abatable, and the injury not permanent, defendant cannot complain of the exclusion of evidence relating to the question of permanent injury as dependent upon the previous and subsequent value of the property. Proof of the depreciation in the rental value of the four rooms of plaintiff’s bouse which he had been renting to roomers was a sufficient basis for an award of damages, without showing the rental value of the entire house. As to those parts occupied by himself and family, the jury could give compensation for plaintiff’s discomfort and annoyance resulting from the operation of the mixer and its appurtenances. Yolande Coal & Coke Co. v. Pierce, 12 Ala. App. 431, 68 So. 563, 565 (3). We have examined all of the questions raised and argued by appellant, and find no prejudicial error upon which to base a reversal of the judgment, which will therefore be affirmed. Affirmed. ANDERSON, O. J„ and THOMAS and BOULDIN, JJ., concur.