Opinion
6 Div. 518.
April 12, 1934. Rehearing Denied May 31, 1934. Further Rehearing Denied June 28, 1934.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
W. J. Wynn and T. A. McFarland, both of Birmingham, for appellant.
Where the trial court improperly curtails the right of counsel to argue his case, reversal will follow. Vida Lumber Co. v. Courson, 216 Ala. 248, 112 So. 737; Birmingham R. E. Co. v. Wildman, 119 Ala. 547, 24 So. 548. The municipality is not liable for the effects of an unusual or extraordinary storm or flood. 43 C. J. 1136; Arndt v. Cullman, 132 Ala. 540, 31 So. 478, 90 Am. St. Rep. 922. Where an element of recoverable damages is set out in the complaint and the undisputed proof shows there is no basis for recovery as to such element, if refused by the court, is prejudicial error. Birmingham R., L. P. Co. v. Camp, 161 Ala. 456, 49 So. 846; Fields v. Karter, 121 Ala. 329, 25 So. 800; Western Union Tel. Co. v. Smith, 189 Ala. 534, 66 So. 578; Knight Iron Metal Co. v. Orr, 202 Ala. 677, 81 So. 633; McKenzie v. State, 19 Ala. App. 319, 97 So. 155; South. Utilities Co. v. Matthews, 84 Fla. 30, 93 So. 188; Alabama Produce Co. v. Smith, 224 Ala. 688, 141 So. 674; Atlantic Coast L. R. Co. v. Shouse, 83 Fla. 156, 91 So. 90, 102. Plaintiff's given charge is bad, in that it omits to direct the jury's consideration of the evidence in the case. Forbes Piano Co. v. H. C. W. B. Reynolds, 1 Ala. App. 501, 56 So. 270; So. R. Co. v. Floyd, 99 Miss. 519, 55 So. 287; Larkinsville Min. Co. v. Flippo, 130 Ala. 361, 30 So. 358; Mizell v. Sylacauga Gro. Co., 214 Ala. 204, 106 So. 858; Hotel Tutwiler Op. Co. v. Evans, 208 Ala. 252, 94 So. 120; Monte v. Narramore, 201 Ala. 200, 77 So. 726; Warren v. State, 166 Miss. 284, 146 So. 449; Sokol Bros. Furniture Co. v. Gate, 208 Ala. 107, 93 So. 724; Sovereign Camp v. Gunn, 224 Ala. 444, 140 So. 410; Shipp v. Shelton, 193 Ala. 658, 69 So. 102. See Hall v. Posey, 79 Ala. 84; Mansfield v. Morgan, 140 Ala. 567, 37 So. 393; Duncan v. St. L. S. F. R. Co., 152. Ala. 118, 44 So. 418; Walls v. Decatur F. Co., 215 Ala. 426, 111 So. 214. The time element was essential to make said charge good. Mitchell's Case, 181 Ala. 576, 61 So. 934; International Agri. Corp. v. Abercrombie, 192 Ala. 50, 68 So. 873; Fuller v. Fair, 202 Ala. 430, 80 So. 814. It was error to overrule defendant's motion for a continuance on account of the question addressed to plaintiff's witness Flowers. Dupuy v. Wright, 7 Ala. App. 238, 60 So. 997; Tennessee C., I. R. Co. v. Spicer, 206 Ala. 141, 89 So. 293; Birmingham Ry., L. P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543; Thames v. L. N. R. Co., 208 Ala. 255, 94 So. 487; Watson v. Adams, 187 Ala. 490, 65 So. 528, Ann. Cas. 1916E, 565; Bozeman v. State, 25 Ala. App. 281, 145 So. 165; Birmingham Electric Co. v. Ryder, 225 Ala. 369, 144 So. 18; Pryor v. Limestone County, 225 Ala. 540, 144 So. 18; Simon v. Still, 206 Ala. 253, 89 So. 713; Haywood v. Ala. F. I. Co., 203 Ala. 550, 84 So. 259; Alabama Iron Fuel Co. v. Benenante, 11 Ala. App. 644, 66 So. 942; Irwin v. State, 16 Ala. App. 109, 75 So. 701; Morris Hotel Co. v. Henley, 145 Ala. 678, 40 So. 52; Whit v. State, 87 Miss. 564, 40 So. 324, 112 Am. St. Rep. 460; Florence Cotton Iron Co. v. Field, 104 Ala. 471, 16 So. 538.
John W. Altman and Fred G. Koenig, both of Birmingham, for appellees.
Plaintiff's given charge correctly states the measure of damages. Different overflows are to be considered as evidential facts in determining whether or not the drainage was defective. City of Birmingham v. Flowers, 224 Ala. 279, 140 So. 353. A written instruction is not bad for omission of the words "from the evidence," wherein it instructed "if the jury be reasonably satisfied." Hall v. Posey, 79 Ala. 84; Mansfield v. Morgan, supra; Duncan v. St. L. S. F. R. Co., 152 Ala. 118, 44 So. 418; State v. Brintle, 207 Ala. 500, 93 So. 429; Walls v. Decatur F. Co., 215 Ala. 426, 111 So. 214; Southern R. Co. v. Lockridge, 222 Ala. 15, 130 So. 557. No damage was claimed for water standing under the house; the charge made the basis of the fourth assignment was properly refused. City of Birmingham v. Flowers, supra. Ordering a mistrial and continuance because of an offer of improper testimony must be left largely to the discretion of the trial court. No error for reversal is here shown. Tennessee C., I. R. Co. v. Spicer, 206 Ala. 141, 89 So. 293; Alabama G. S. R. Co. v. Ensley Transfer Supply Co., 211 Ala. 298, 100 So. 342; Birmingham Ry. Electric Co. v. Mason, 144 Ala. 387, 39 So. 590, 6 Ann. Cas. 929; Tennessee R. N. Co. v. Walls, 209 Ala. 320, 96 So. 266.
This is an action of trespass on the case by the appellees against the appellant for the negligent maintenance of a "permanent culvert * * * constructed and maintained as a part of the permanent public highway designated and known as 24th Street, North," in the city of Birmingham, inadequate to take care of surface water in times of rainfall, as a proximate consequence of which "said water backed up and flowed on, and overflowed upon plaintiffs' said property," greatly depreciating its value.
This case is a companion of the case of City of Birmingham v. Flowers, 224 Ala. 279, 140 So. 353, and the alleged damage to plaintiffs' property resulted from the same cause as that dealt with in the Flowers Case.
The appellant's first contention is that the court erred in giving, at the plaintiffs' request, special instruction made the predicate for the first assignment of error dealing with the measure of damages. The criticism of the charge is not that it erroneously states the rule for the admeasurement of plaintiffs' damages under the facts of the case, but that it omits the element of time "immediately before and after," and does not require the jury to predicate their findings on the evidence in the case, and that in giving this charge the court committed reversible error. In support of this contention appellant cites Larkinsville Mining Co. v. Flippo, 130 Ala. 361, 30 So. 358; E. E. Forbes Piano Co. v. H. C. W. B. Reynolds, 1 Ala. App. 501, 56 So. 270; Mizell v. Sylacauga Grocery Co., 214 Ala. 204, 106 So. 858; and Southern Ry. Co. v. Floyd, 99 Miss. 519, 55 So. 287, 288.
In all these cases, except the Mississippi case, the court was dealing with special instructions refused, and justified their refusal because they were misleading. In the Mississippi case the court was dealing with an instruction given, embodying the expression, "If the plaintiff has shown by the evidence," and the contention there was that the instruction was erroneous and should have instructed the jury that their finding of the facts hypothesized must be predicated on the belief of the evidence. The court held that this contention was "hypocritical."
While the omission of the element of time rendered the charge misleading, in substance it stated the correct rule for the admeasurement of damages. City of Birmingham v. Flowers, supra; Sloss-Sheffield S. I. Co. v. Mitchell, 181 Ala. 576, 61 So. 934; Fuller v Fair, 202 Ala. 430, 80 So. 814.
We conceive it to be well settled that the giving of a charge that is merely misleading does not constitute error to reverse. Hall v. Posey, 79 Ala. 84; Duncan v. St. Louis San Francisco Railroad Co., 152 Ala. 118, 44 So. 418; Mansfield v. Morgan, 140 Ala. 567, 37 So. 393; Walls v. Decatur Fertilizer Co., 215 Ala. 426, 111 So. 214.
The appellant's next contention is that the court erred in refusing special instructions made the predicate for the second and third assignments of error. The insistence is that the evidence shows without dispute that the rainfall of March 13 and 14, 1929, was unprecedented, and therefore the injury resulting therefrom was an act of God.
"A flood is 'unprecedented' if it is some. what higher or somewhat more destructive than any preceding flood." The expression "unprecedented rainfall" may be "defined as such an unusual and extraordinary rainfall as has no example or parallel in the history of rainfall in the vicinity affected, or as affords no reasonable warning or expectation that it will likely occur again." 66 C. J. page 55; Nashville, C. St. L. Ry. v. Yarbrough, 194 Ala. 162, 69 So. 582; Zollman v. Baltimore O. S.W. R. Co., 70 Ind. App. 395, 121 N.E. 135.
"The reason for the exception from liability when the damage is caused by an unexpected and unprecedented occurrence of nature is found in the fact that man cannot provide against it and has no reasonable expectation that it will likely occur." Nashville, C. St. L. Ry. v. Yarbrough, 194 Ala. 162, 168, 69 So. 582, 584.
Said charges, if they be deemed applicable to the issues, were invasive of the province of the jury, and were properly refused. Nashville, C. St. L. Ry. v. Yarbrough, supra. We are of opinion that said charges were properly refused for a better reason. The count on which the case was tried seeks to recover for injury resulting from a permanent structure which diminished the value of the plaintiffs' property, and not damages resulting from any specific flood or rainfall. The charges were both abstract and misleading. City of Birmingham v. Flowers, supra.
The last-stated reason justifies the court in refusing the special charge made the predicate of assignment of error 4.
Under the averments of the complaint claiming damages for permanent injury only, the evidence going to show the consequences attending the flooding of plaintiffs' property after the construction of the culvert was admissible, not as an element of damages, but to fix the date and consequences of the damnifying act and aid the jury in determining what, if any, permanent injury and damage the plaintiffs suffered from the negligent maintenance of the culvert, if it was negligently maintained. City of Birmingham v. Flowers, 224 Ala. 279, 140 So. 353.
It was permissible for the court to allow the defendant on cross-examination of the witness Flowers to show that he had sued the defendant for the same occurrences involved in plaintiffs' case, and that plaintiff testified as a witness in his behalf. This testimony was admissible to show interest or bias of the witness. Stahmer v. State, 125 Ala. 72, 27 So. 311; Jones v. Tennessee Coal, Iron R. Co., 202 Ala. 381, 80 So. 463; McCormack v. State, 133 Ala. 202, 32 So. 268; Bice v. Steverson, 205 Ala. 576, 88 So. 753; Drum Ezekiel v. Harrison, 83 Ala. 384, 3 So. 715.
This, however, did not arm the plaintiff with the right, on redirect examination, to show by the witness that the jury in his case returned a verdict in his favor, as this fact shed no light on the credibility of the witness and was wholly irrelevant and immaterial to the issue being tried. City of Tuscaloosa v. Hill, 14 Ala. App. 541, 69 So. 486; Ex parte Hill (In re City of Tuscaloosa v. Hill), 194 Ala. 559, 69 So. 598.
There was no objection to the question put to the witness on redirect examination, nor did the witness answer the same; and we are not of opinion that the court erred in refusing defendant's motion to enter a mistrial and continue the case.
The statement in the bill of exceptions as to the argument of defendant's counsel, embodying the excerpt to which objection was sustained by the court and made the predicate for the fifth assignment of error, is too meager to authorize a review of that ruling. Kratz v. Bonner, post, p. 700, 156 So. 911.
We are further of opinion that the motion for a new trial was overruled without error.
Affirmed.
ANDERSON, C. S., and THOMAS and KNIGHT, JJ., concur.