Opinion
6 Div. 283.
May 25, 1933.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
R. B. Evins, of Birmingham, for appellant.
Under the facts averred and proved, the station maintained by appellant did not constitute a nuisance. White v. Luquire, 221 Ala. 440, 129 So. 84; Drennen v. Mason, 222 Ala. 652, 133 So. 689. But if a nuisance, it was public and not a private nuisance. Code 1923, § 9274. In order for plaintiff to recover it was necessary for him to show that he suffered damages peculiar to himself and different in kind from that suffered by the public generally. Code 1923, § 9274; Russell v. Holderness, 216 Ala. 95, 112 So. 309; Sloss S. S. I. Co. v. Johnson, 147 Ala. 384, 41 So. 907, 8 L.R.A. (N.S.) 226, 119 Am. St. Rep. 89, 11 Ann. Cas. 289. There was no proof that "other objectionable matter" issued from defendant's premises, nor that there was any singing or fighting carried on at the substation. Where there is an entire lack of proof of any material averment of the complaint necessary to a recovery, the affirmative charge should be given at defendant's request. This is true in some instances where the matter alleged, though unnecessary, becomes a part of the description of the cause of action. So. R. Co. v. Lee, 167 Ala. 268, 52 So. 648; Pharr v. Bachelor, 3 Ala. 244. If redundant allegations are introduced into pleading and they are descriptive of that which is material, a failure of proof as to them is fatal. Gilmer v. Wallace, 75 Ala. 220. If the ground upon which the court gave the affirmative charge for defendant is an improper one, that is not material if defendant was entitled to it on any ground. 2 R. C. L. 189.
Jarrett Abercrombie, of Birmingham, for appellee.
In view of the statutory definition of a nuisance, and under the evidence, the case should have been submitted to the jury to determine whether or not plaintiff suffered any damage peculiar to himself or different in kind from that suffered by the public generally. Code 1923, §§ 7271, 9274, 9275; Sloss S. I. I. Co. v. Johnson, 147 Ala. 384, 41 So. 907, 8 L.R.A. (N.S.) 226, 119 Am. St. Rep. 89, 11 Ann. Cas. 289. A party injured may recover for special damages beyond those suffered by the public generally. Birmingham v. Ingram, 20 Ala. App. 444, 103 So. 595; Fifth Ave. C. L. Co. v. Johnson, 171 Ala. 470, 54 So. 598, 32 L.R.A. (N.S.) 522; Duy v. Ala. W. R. Co., 175 Ala. 162, 57 So. 724, Ann. Cas. 1914C, 1119. Appellant was not entitled to the affirmative charge for a failure of proof. Circuit Court Rules 34, 35; 4 Code 1923, pp. 906, 907.
We think that the proof established a private nuisance or one as to which the plaintiff suffered a special injury different in kind from the public generally. The evidence tended to show that his yard, or premises, was constantly and continuously littered with paper either thrown, or negligently permitted to escape, by those charged with the handling of the defendant's papers. This, of itself, though the damage may have been trifling, put the trial court in error in giving the general charge for the defendant and justified granting the motion for a new trial. It is suggested by counsel for appellant that the plaintiff should not recover upon this theory of the case because the evidence shows that some of the paper, or trash, went upon the lot of a neighbor also, and that he suffered injury common to the public, but different only in degree. Section 9274 of the Code of 1923, in defining a public and private nuisance, does not require that the injury must be sustained by only the plaintiff to give the right to complain. It says: "A private nuisance is one limited in its injurious effect to one or a few individuals." Here, the escape and throwing the paper and waste was limited to a few, the plaintiff and one neighbor.
As to the other phase of the case, that is, noise entering upon the premises, etc., it may be doubtful if that was a public nuisance. Certainly what was done on plaintiff's premises was private, and, while the noise or boisterous conduct may have annoyed others besides the plaintiff, it could not have annoyed the public generally, but was confined to the plaintiff and a few neighbors only within hearing distance. But conceding, only for the purpose of deciding this case, that it was a public nuisance, yet it may have been one of such character that injured the plaintiff specially, and different in kind from the public generally. Alabama, G. S. R. R. v. Barclay, 178 Ala. 124, 59 So. 169; First Ave. Coal Lumber Co. v. Johnson, 171 Ala. 470, 54 So. 598, 32 L.R.A. (N.S.) 522. Or as said by the Massachusetts court: "A nuisance may be at the same time of both a public and private character, which status may give an individual a civil right of action for damages, and may abate it as a private nuisance, though it might be also abated as a public nuisance." 6 Mayfield's Digest, page 680, § 6.
It is next urged that the defendant was entitled to the general charge for the reason that some of the things averred were not proven, relying on the cases of Gilmer v. Wallace, 75 Ala. 220, and Southern Railway Co. v. Lee, 167 Ala. 268, 52 So. 648. It is sufficient to say that these unproved averments were not essential to a cause of action, and it was not therefore necessary to prove each of them. Southern Railway Co. v. Lee, supra; Birmingham Railway Electric Co. v. Baylor, 101 Ala. 488, 13 So. 793.
The judgment of the circuit court is affirmed.
THOMAS, BROWN, and KNIGHT, JJ., concur.