Brown v. Alabama G. S. R. R. Co.

McCLELLAN, J. The perfect observance, by Mr. E. L. Hurst, the clerk of the city court of Gadsden, of Supreme Court rule No. 26, set out in 175 Ala. xix, 61 South, vii, and the general neatness of the transcript, on this appeal, warrants this court- in commending him for the excellent performance of his duty in this important regard. [505] (1, 2) The action is by appellant against appellee for damages to plaintiff’s mill and property in consequence of surface water being retarded in its natural flowage by reason of an alleged insufficient culvert under or through an embankment or fill made and maintained by the defendant in the construction and operation of its railway in the city of Attalla. The defendant’s demurrers to all the counts were overruled. The demurrer to count 7 did not question its sufficiency as a count ascribing the injury and damage alleged to wanton, willful, • or intentional misconduct of servants of defendant “in permitting or allowing the said culvert, sewer, or pipe to become filled with earth, gravel, stone, or other debris as aforesaid.” No demurrer of any kind appears to have been interposed to count 8. Both counts 7 and 8 purport to impute the aggravated wrong to the defendant through the non-observance of duty by its employees. To these counts, thus unquestioned in respect of their sufficiency to charge wantonness or willfulness, defendant undertook by pleas 9 and 10 to be exonerated in consequence of the therein asserted contributory negligence on the part of the plaintiff. Contributory negligence is, of course, no answer to counts ascribing the injury and damage to wanton or willful wrong. It is not permissible to give pleas an effect equivalent to aptly grounded demurrer. Counts which defectively state a cause of action as for wanton or willful wrong cannot be assailed as by plea. Demurrer is the remedy. The court was in error, therefore, in overruling the demurrer to pleas 9 and 10 as answers to counts 7 and 8. (3) Count 5 attributed the injury and damage to simple negligence of servants of the defendant in allowing the culvert to be so clogged as that the surface water from a heavy rainfall was retarded and thrown [506] back in plaintiff’s mill. To this count defendant interposed plea 7. This plea asserted that plaintiff was guilty of proximately contributing negligence, in that he caused debris, etc., to be placed in the culvert, and thereby “contributed to the obstructions complained of” in count 5. The plea (7) was, in our opinion, subject to the sixth ground of the demurrer interposed thereto. This ground asserts that the plea only expressed the conclusion of the pleader. The facts from which the pleader deduces his conclusion that the debris placed in the culvert by the plaintiff contributed to the obstructions complained of are, in material parts, left unstated. Whether the contributions averred to1 have been made by plaintiff to the obstruction were sufficient to malee any practical difference in the clogging, in whole or.in part, of the culvert, is only to be inferred by reference to the avowal of the pleader’s conclusion to that end. Indeed, this plea’s averments would be sustained by proof that plaintiff caused completely inconsequential debris to be placed in the culvert; whereas, in order to conclude the plaintiff as for acts of this character and exonerate the defendant from the consequences of the wrong averred in count 5, it was necessary that the contributions made by the plaintiff should have been such as to effect the clogging, in whole or in material part, of the culvert. The plea is also' defective in that it is not averred therein that the matter placed in the culvert by the plaintiff proximately contributed to the injury complained of in count 5, instead of, as averred, to the obstructions mentioned therein. But this objection to the plea is not pointed out by any ground of demurrer. Plea 8 is, upon like considerations, subject to the same criticisms as those made of plea 7. The demurrer should have been sustained to plea 8. [507] As we understand the record, pleas 4 and 5 were held to be subject to demurrer — a ruling favorable, of course, to appellant. (4) Under counts of the complaint averring particular elements of damage resulting from the flooding of the mill, it was admissible for plaintiff to show the suspension of the operation- of his mill, its duration, and the net loss of the business entailed thereby.— Sparks v. McCrary, 156 Ala. 382, 47 South. 332, 22 L. R. A. (N. S.) 1224; Sou. 1. & E. Co. v. Holmes, 164 Ala. 517, 525, 51 South. 531. The court was in error in denying admission to features of the testimony looking to that end on the examination in chief of the witness T. C. Banks. (5) There was no error in allowing the defendant to elicit from the witness Cassels testimony tending to show that the operation of the mill was hindered by a deficient or intermittent electric current upon which it relied for power; this as tending to refute the contention that there was loss in suspension of the business of the mill, and that the flooding was the occasion of that suspension, if sustained. (6, 7) Charges 17 and 18 were refused to- plaintiff without error. The former did not take due account in its hypothesis of the defenses pleaded, but predicated plaintiff’s right to recover only upon the establishment of a cause of action set forth in the complaint. The latter charge misstated the measure of proof necessary to warrant a recovery by plaintiff. (8) Charge 19 refused to plaintiff appears to confuse the rules of law pertaining to willful or wanton misconduct or omission. Contributory negligence is not available to defeat a recovery on that account. It was proper to refuse that request. [508] There is evidence tending to support every material allegation of the complaint, both as for liability for simple negligence and for a conscious disregard of the damnifying consequences to plaintiff’s property that would probably ensue if a heavy, though not unsuual, rainfall should come. The issues on the complaint were for the jury. Such was the view prevailing in .the trial court. The judgment is reversed, and the cause is remanded. Reversed and remanded. Anderson, C. J., and Mayfield and de Graffenried, JJ., concur.