Opinion
6 Div. 705.
April 7, 1927.
Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.
Charles R. Wiggins, of Jasper, for appellant.
The complaint was subject to objection that it did not show a compliance with the charter of the defendant, and for claiming damages to person, showing no injury to property right. Local Acts 1900-01, p. 410; Hughes v. Auburn, 161 N.Y. 96, 55 N.E. 389, 46 L.R.A. 636; Dillon, Mun. Corp. (5th Ed.) p. 3057; Treadwell v. Tillis, 108 Ala. 262, 18 So. 886; Brannon v. Birmingham, 177 Ala. 419, 59 So. 63; Bland v. Mobile, 142 Ala. 142, 37 So. 843; Code 1923, §§ 11, 2029, 2031. Plaintiff was entitled to no more than nominal damages. Dillon, Mun. Corp. (5th Ed.) § 685.
Sowell Gunn, of Jasper, for appellee.
The complaint was not subject to demurrer or motion to strike. Jeff. Fertz. Co. v. Rich, 182 Ala. 633, 62 So. 40; Yolande C. C. Co. v. Pierce, 12 Ala. App. 439, 68 So. 563; Lamb v. Roberts, 196 Ala. 679, 72 So. 309, L.R.A. 1916F, 1018; City of Bessemer v. Pope, 212 Ala. 16, 101 So. 648; Shelby Iron Co. v. Greenlea, 184 Ala. 496, 63 So. 470; Acts 1900-01, p. 410; Acts 1907, p. 790, §§ 49, 95, 200; Code 1923, § 2031; Town of Lineville v. Gauntt, 20 Ala. App. 135, 101 So. 154. As to measure of damages, see City of Birmingham v. Shirley, 209 Ala. 305, 96 So. 214; Morgan Pav. Co. v. Shoemaker, 213 Ala. 625, 105 So. 884.
Action by appellee against appellant, claiming damages for that defendant maintained a defective sewer in close proximity to the residence of plaintiff, so that "quantities of excrement and filth oozed, leaked, or flowed from out of said sewer and thereby noisome, noxious, offensive, and unwholesome smells, vapors, and stenches * * * ascended and came unto and into the said premises of plaintiff, and * * * greatly damaged, annoyed, and incommoded plaintiff and her family in their habitation of the premises."
The main objection taken by defendant's demurrer was that the complaint failed to show a compliance with section 44 of the Act approved December 13, 1900 (Acts 1900-01, p. 410 et seq.), entitled an act "to establish a new charter for the city of Jasper, Walker County, Alabama," providing, in short, that no suit could be maintained against the city until application had been made to the board of mayor and aldermen for payment. The claim, it must be conceded, was for personal injury in part at least (Birmingham v. Ingram, 212 Ala. 552, 103 So. 599), but the suit was not governed by the act referred to, for the reason that it was superseded by section 95 of the General Act approved August 13, 1907 (Acts, p. 790 et seq.), now sections 2029, 2030, 2031, of the Code, providing for the organization, incorporation, government and regulation of cities and towns, etc., and regulating the same subject in a manner different from that prescribed by section 44 of the special or local act of December 13, 1900. Section 200 of the general municipal corporation law, supra, provided:
"That all laws and parts of laws, both general and special, in conflict herewith be and the same are hereby repealed."
This had effect to repeal the section of the Jasper incorporation act. The complaint alleged a compliance with this section of the Code. It follows that defendant's demurrer, and, of course, its motion to strike on the same ground, were properly overruled.
The same reason leads to the conclusion that the trial court committed no error in sustaining demurrers to several special pleas filed by defendant, nor in refusing the general charge requested by defendant on the ground that section 44 of the special charter of Jasper had not been complied with; the proof showing a compliance with the general municipal incorporation law.
We find no fault in those parts of the court's oral instruction to which exceptions were reserved. Those parts of the charge assume nothing against the defendant. Everything said by the court in reference to the assessment of damages was prefaced by an hypothesis, in effect that the evidence established facts necessary to plaintiff's recovery. Any other objections taken against the charge are answered by Birmingham v. Ingram, supra, and the several cases there cited. Nor was defendant entitled to the charge that no more than nominal damages could be assessed. There was evidence tending to show that the rental value of plaintiff's property was impaired during the time in which defendant's sewer was allowed to remain in a state of disrepair, discharging filth and emitting noisome odors, and this, as well as the annoyance of the situation thus provided, entitled plaintiff to recover, if anything, more than merely nominal damages.
Several rulings on evidence are mentioned in defendant's (appellant's) brief under the head of "propositions." They are not considered as needing special treatment. However, defendant calls special attention to one ruling to which we will refer. Dr. Waldrop, city and county health officer, was examined by defendant. He mentioned a visit to the premises and on cross-examination was asked a question the answer to which might have been expected to develop the fact that he only made the visit in November (after the time covered by the evidence for plaintiff) and on the suggestion of Dr. Stovall. We see no impropriety in the question on cross-examination. But, in any event, there was no reversible error in overruling defendant's objection, because the answer was that witness did not remember.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.