Opinion
8 Div. 934.
May 30, 1929.
Appeal from Circuit Court, Morgan County; O. Kyle, Judge.
Action by W. H. Aycock against the city of Decatur. From a judgment for defendant, plaintiff appeals. Reversed and remanded.
Counts 5, 6, 7, 8, and 12 of the complaint are as follows:
"Count 5. The plaintiff claims of the defendant the like sum of $15,000.00 as damages for that the defendant was on and prior to May 12th, 1924, and is now, a municipal corporation in the county of Morgan, State of Alabama; that on and prior to said date the defendant mantained a public street in said city known as Ferry Street; that it likewise maintained a public street in said city known as Lee Street which intersected with said Ferry Street; that on said day and date and prior thereto the plaintiff was in possession of a large brick store building in said city which fronted on Ferry Street at its intersection with another street in said city known as Davis Street and which building was a short distance from the intersection of said Lee and Ferry Streets; that on said day and date and prior thereto, the defendant was the owner of and conducted a wholesale mercantile business in said building. That prior to said day and date the defendant improved all or a part of said Ferry Street, including that part immediately in front of plaintiff's store and also all that part of Lee Street within its corporate limits with paving material which was hard and firm and that each side of said streets were also improved with concrete curb and gutter so that water falling or concentrating upon said streets would not be absorbed, but would flow along and upon said streets; that on the 12th day of May, 1924, the defendant maintained each of said streets with said improvements as aforesaid; that as a proximate consequence of the improvement and maintenance of said streets as aforesaid rain water which naturally flowed in another direction was thereby diverted from its natural flow and flowed along and upon said streets to their intersection and it was there concentrated; that on the said 12th day of May, 1924, a large quantity of rain water was diverted by said streets and was concentrated at the said point in such a quantity as that it overflowed the lower floor or basement of said building and wet, soiled and damaged plaintiff's said stock of merchandise to plaintiff's damage in the said sum of $15,000.00.
"Count 6. The plaintiff claims of the defendant the like sum of $15,000.00 as damages for that on and prior to the 12th day of May, 1924, the defendant maintained two public streets within its corporate limits, one known as Ferry Street and the other known as Lee Street, which intersected within said corporate limits. That prior to said day and date the defendant paved each of said streets and established a concrete curb and gutter on each side thereof which paving and curb and gutter extended to their intersection. That on said day and date and prior thereto, the plaintiff was in possession of a brick store building fronting on said Ferry Street near the aforesaid intersection and in which he conducted a mercantile business and in which he carried a large stock of goods and merchandise. That prior to the time said streets were improved they were soft and porous and easily absorbed all or a large part of rain falling thereon and water draining to said streets, but that after they were paved and after the curb and gutter was established thereon as aforesaid said streets were hard and firm and that rain falling thereon and water draining thereto was not absorbed by said streets, but was carried along the surface of said streets to said intersection where it was concentrated in large quantities and said streets were so maintained on the said 12th day of May, 1924. Plaintiff avers that on said day and date a large quantity of rain water fell upon and was drained onto said streets and that said water flowed along said streets and concentrated at their intersection and as a proximate consequence thereof, the basement of plaintiff's said building was inundated with said water and the stock of goods and merchandise therein located was made wet and was soiled and damaged to plaintiff's damage in the said sum of $15,000.
"Count 7. Plaintiff for count 7 adopts all the language of count 6 and adds thereto the following additional allegation: Plaintiff avers that the defendant negligently failed to maintain a sewer of sufficient size and capacity to carry away the water so falling upon and draining onto said streets and thereby preventing its concentration as aforesaid and that the damage to plaintiff's stock of goods and merchandise was the proximate consequence of said negligence and of which the defendant had notice.
"Count 8. Plaintiff claims of the defendant the like sum of Fifteen Thousand ($15,000.00) Dollars as damages for that whereas on to-wit May 12, 1924, the plaintiff was conducting a wholesale mercantile business in a building within the corporate limits of the defendant city and located at the corner of Ferry and Davis Streets in said city and that in the basement of said building the plaintiff carried a large stock of goods and merchandise. That the defendant on said day and date maintained a sewer near said building and which it had maintained for some time prior thereto to drain rain water falling upon its streets and the territory near said building, but that the defendant with notice thereof, negligently failed to maintain a sewer of sufficient size and capacity to drain said water and that as a proximate consequence of the said negligence on the aforesaid day a large quantity of rain water was collected on said streets and territory which flooded the said basement and wet, soiled and damaged said stock of goods and merchandise therein located to plaintiff's damage in the said sum of $15,000.00."
"Count 12. The plaintiff claims of the defendant, a municipal corporation in the State of Alabama, the like sum of Fifteen Thousand ($15,000.00) Dollars as damages in this: The plaintiff was on the 12th day of May, 1924, in possession of a large brick store building, located at the intersection of Ferry and Davis Streets in the defendant city, and in which the plaintiff conducted a wholesale business; the said store building was provided with a basement and plaintiff had stored in said basement a part of the stock of goods and merchandise with which he conducted said business. The City of Albany was on said day and date and had been for many years prior thereto, a contiguous municipality to the defendant, and the corporate limits of the said city of Albany and of the defendant adjoined among other places at a point near the location of the aforesaid building. Plaintiff avers that the defendant on said day and date did, and that it had for a long time prior thereto, maintained Ferry Street as one of its public streets, and which was wholly within its corporate limits; it likewise did on said day and date and that it had for a long time prior thereto maintained all that part of Lee Street which was within its corporate limits as a public street; the said Lee Street was partly within the corporate limits of the defendant and partly within the corporate limits of the said city of Albany. The said Ferry Street and the said Lee Street intersected a short distance from said building, and their intersection was wholly or partly within the corporate limits of the defendant, and said intersection was at the northern terminus of a public street in the city of Albany known as Second Avenue. That part of the intersection of said Ferry and Lee Streets in the City of Decatur was at the foot of an elevation from both Ferry Street in defendant's corporate limits and Second Avenue in Albany's corporate limits. The said Ferry Street, the said Lee Street and the said Second Avenue were on said day and date, and had been for a long time prior thereto improved or paved. Plaintiff further avers that for a long time prior to said day and date large quantities of rain water falling on Ferry Street and other streets and territory within the vicinity of said intersection and in the defendant's corporate limits flowed onto said intersection where it was concentrated or accumulated and for a long time prior to said date that large quantities of rain water falling on Second Avenue and other streets and territory within the corporate limits of the city of Albany and in the vicinity of said intersection flowed onto said intersection and was discharged wholly or partly onto that part of Lee Street within the corporate limits of the defendant and onto Ferry Street and other territory within the defendant's corporate limits, and of which the defendant had notice. Plaintiff further avers that the defendant did on said day and date and that it had a long time prior thereto maintained a sewer in the vicinity of said intersection to drain said rain water so concentrating and accumulating, but that defendant with notice thereof, negligently failed to maintain a sewer of sufficient size and capacity to drain said water so concentrating and accumulating and that as a proximate consequence of said negligence and on to-wit the said 12th day of May, 1924, a large quantity of rain water was concentrated and accumulated at said intersection and within the corporate limits of the defendant and that said water backed up and flooded said basement and wet, soiled and damaged the goods and merchandise therein stored, to plaintiff's damage as aforesaid."
Defendant's pleas 2 and 3 are as follows:
"Plea Two. To the 3, 4, 9, 10, 11, 13, 14 15 counts, severally and separately, the defendant says, that the plaintiff for many months immediately preceding the date of the injury complained of, knew that the defendant had constructed and was maintaining the drains, sewers, manholes and catch basins at the place mentioned in his complaint, and that the same were insufficient and inadequate to carry away or drain the surface waters from the territory in which said store and goods were located, and he knew during this time and up to the time of the injury that the defendant had failed to make any changes in the construction or equipment or repair thereof of said drain, sewer, manhole or catch basins, so as to remedy the deficiencies and inadequacies thereof; and he knew during all this time that during heavy or excessive rains that the surface waters from said Lee Streets and contiguous territory had backed into and entered the basement of his said store, and that such flooding was liable to and probably would recur and continue, and would probably damage his goods located in said basement, and not withstanding his knowledge of these facts and conditions, he placed or kept and continued to keep his goods so exposed in said basement in such manner that they would be subject to and in all probability would be damaged by recurring floods and backwaters entering said basement, and he failed to take any steps to protect his said goods or prevent damage thereto, which he could have done by the exercise of ordinary diligence, and which said failure on his part proximately contributed to his injury here alleged.
"Plea Three. To counts 3, 4, 9, 10, 11, 13, 14 15 severally and separately, the defendant says, that for a period of several years immediately preceding the time of the injuries complained of, the plaintiff knew that the territory between his said store and said Lee Street was, by reason of the conformation of the ground, a natural repository for the surface waters of all or a very considerable part of the surrounding and adjacent territory, and that after rains, vast quantities of surface water flowed from said adjacent territory and into said repository territory and accumulated in large quantities, and that the drains, sewers, manholes and catch basins located in that territory were inadequate and insufficient to carry said waters away, and that the same spread out over the territory between his said store and said Lee Street and adjacent territory, and that on occasions it had flowed into his said basement. Plaintiff further knew that during all this time, the City of Decatur had not or could not construct sewers or remedy the ones it had, so as to drain said territory and prevent the flooding of plaintiff's basement, and that plaintiff, notwthstanding his knowledge of all these facts and conditions continued to maintain an incline or driveway leading from the outside of his building into his basement, said incline sloping from a point to-wit, ten feet from the rear of his building down to the basement and entering the basement flush with the floor of the basement, and to keep his said goods in his said basement, and negligently placed them on the floor of said basement, or in such close proximity thereto as to subject them to damage by the flooding of said basement, which negligence proximately contributed to the injuries and damage herein claimed."
G. O. Chenault and Tennis Tidwell, both of Decatur, for appellant.
There was error in sustaining demurrer to counts 1 and 2. Arndt v. City of Cullman, 132 Ala. 540, 31 So. 478, 90 Am. St. Rep. 922; Bieker v. City of Cullman, 178 Ala. 662, 59 So. 625; City of Montgomery v. Stephens, 14 Ala. App. 274, 69 So. 972. Counts 5 and 6 state a cause of action under City of Eufaula v. Simmons, 86 Ala. 515, 6 So. 47; Arndt v. City of Cullman, supra; 43 C. J. 1145. When defendant exercised the power conferred upon it to construct a sewer, the legal duty rested upon it to maintain a sewer of sufficient size and capacity to discharge the water so concentrated; and if it maintained an insufficient sewer, and plaintiff was damaged thereby, defendant was liable. Counts 7, 8, and 12 were not subject to demurrer. Code 1923, § 2076; Montgomery v. Stephens, supra; Arndt v. Cullman, supra; Bieker v. Cullman, supra. The facts alleged in pleas 2 and 3 do not constitute contributory negligence. 43 C. J. 1158.
W. W. Callahan, of Decatur, for appellee.
Brief of counsel did not reach the Reporter.
Demurrer to counts 1 and 2 of the complaint was sustained. It is to be inferred that the court sustained the ground of demurrer which alleged that the negligence charged was not shown to be the proximate cause of plaintiff's injury, or substantially that — this because the demurrer to counts 3 and 4, identical with 1 and 2, except that an allegation of proximate relation was added, was overruled. Whatever may be said of counts 1 and 2, plaintiff had advantage under counts 3 and 4 of every allegation of the first two; proof of proximate cause being necessary in any case. The error, if any, was harmless.
The purpose of the pleader in framing count 5 was to state a cause of action without alleging negligence. The reliance for a finding of error is upon the fact that water was diverted from its natural flow and concentrated at a certain place whence it overflowed the curb and upon plaintiff's property. Eufaula v. Simmons, 86 Ala. 515, 6 So. 47; Arndt v. Cullman, 132 Ala. 540, 31 So. 478, 90 Am. St. Rep. 922, and 43 Corpus Juris, p. 1145, § 1905, are cited as authorities for this phase of appellant's case. Rulings on counts similar to the fifth, but with the addition characterizing what was done by the city as negligence, or negligently done, indicate that the absence of the charge of negligence induced the court to rule against the sufficiency of this count. In Arndt v. Cullman it seems to have been held that a municipal corporation is liable in damages, where it so changes the grade of a street as to prevent the natural flow of surface water from the street and diverts it onto plaintiff's property, and in Avondale v. McFarland, 101 Ala. 381, 13 So. 504, in view of constitutional provisions, it was held that to so change the grade of a street as to prevent the natural flow of water away from the adjacent property rendered the municipality liable. The count under consideration, if we understand it, charges the damage to plaintiff's stock of goods in his cellar to the fact that the municipal authorities caused a concentration of water at a point whence it overflowed onto plaintiff's property by paving the street so that the water, instead of being in part at least absorbed by the soft and porous soil flowed along the surface of the street and overflowed upon plaintiff's premises. The court is of opinion that, since the municipality has no control over the ordinary flow of surface water, its concentration at the place from which it is alleged to have overflowed upon plaintiff, unless brought about by negligence on the part of the municipality in providing for its flow in an artificial channel, would not impose liability, and, therefore, that the demurrer was properly sustained. 43 Corpus Juris, 1143. So of counts 6 and 7. Count 7 adds to count 6 an allegation that defendant negligently failed to maintain a sewer of sufficient size and capacity to carry away the water. Inspecting this count narrowly as the trial court had a right to do in response to the grounds of demurrer taken against it, the count is open to the criticism that it fails to allege that defendant maintained a sewer of any description, and for that reason, since defendant was not under duty to provide an artificial sewer, but only, having undertaken to do so, to provide a sewer fit and sufficient for the purpose (Birmingham v. Crane, 175 Ala. 90, 100, 56 So. 723), the demurrer was properly sustained. Code, § 2029; Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771.
But we see no objection to counts 8 and 12, the demurrers to which should have been overruled. The facts alleged, we think, sufficiently show a duty on the part of defendant to maintain a fit and sufficient sewer.
Damour v. Lyons City, 44 Iowa, 276, is authority for the proposition that the court erred in overruling the demurrers to special pleas of contributory negligence numbered 2 and 3. It is there held, in a case similar to this, that plaintiff's building being used as a store, he had the right to make such use of it as would prove most profitable to him, and that the defendant had no right by its wrongful act to deprive him of the use of his property, nor to require him to forego the use of his cellar for no better reason than that the negligence of defendant had made it a place the use of which might be attended with loss. Arndt v. Cullman, supra; 43 Corpus Juris, p. 1158, § 1915.
We find no error in the rulings on special charges given at the request of defendant.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.