Birmingham Ry. Light & Power Co. v. Oden , 146 Ala. 495 ( 1906 )

DENSON, J.

The plaintiff sued the defendant, Birmingham Railway, Light & Power Company, a corporation, to recover damages alleged to have resulted to them as owners of a lot which abutted am Tenth avenue, in the city of Birmingham, from the construction by defendant of a street railroad embankment along said avenue. The complaint is composed of two counts, and was filed on the 9th day of November,'3903, in the circuit court of Jefferson county. A demurrer to each count of the complaint ivas overruled by the court.

The first and second grounds in the assignment of errors challenge the correctness of the judgment of the court on the demurrers. Each of the counts show that the embankment was constructed by the defendant in the course of construction and operation of a system of street railroads in the city of Birmingham under a privilege or franchise granted to it by the mayor and aider-men of said city, permitting it to construct and operate its system of railroads. The first count avers that the plaintiff's lot was “damaged on account of such construction of said embankment,” but no facts are averred in this count upon which the claim for damages is based, other than the ownership of the property abutting the avenue and the construction of the embankment, nor is the character or nature of the injury to the lot averred. Conceding that the count is framed with respect of section 227 of the Constitution, under that section there must have been actual damages resulting to the plaintiff on account of the construction of the embankment. The averment of the construction of the embankment under a privilege granted by the city authorities, without more, would not show a substantial cause of action. There must have beam a special injury to the plaintiff’s property with actual damages as a consequence. Actual damages, then, are of the very essence of the plaintiff’s right of recovery, and must be shown by appropriate averments in the complaint. Confessedly the averment of the first count with respect of damages is a bare conclusion of the pleader, and unless this is sufficient it must be held that the judgment of the court overruling the demurrer to this count was erroneous.

This case cannot be classed with that line of cases in Avhich it has been held that if a complaint is good to recover eA'en nominal damages, or if it alleges damages Avhich are not too remote, it is safe from demurrer. An inspection of those cases Avill reveal that the nature of the injury Avas specifically aAnrred, and the demurrer was either upon the ground that there Avas no claim of damages, or that the damages claimed Avere too remote. In other Avords, it Avas sought in those cases to present by demurrer the question of the proper measure of damages. — Pryor v. Beck, 21 Ala. 393; A. G. S. R. R. Co. v. Tapia, 94 Ala. 226, 10 South. 236; Norton v. Kumpe, 121 Ala. 116, 25 South. 841; Elliott v. Kitchens, 111 Ala. 546, 20 South. 366, 33 L. R. A. 364, 56 Am. St. Rep. 69; Treadwell v. Tillis, 108 Ala. 262, 18 South. 886. The actual recoverable damages are such as are the natural and proximate result of the construction of the embankment, and AA'hat constitutes such damage, is a question of Iuav, determinable by the, court upon the fact alleged. While it is not necessary, nor Avould it- be good pleading, to set out the. eAddence in the. complaint going to shoAV the plaintiff’s damages, yet, in order to make out a substantial cause of action, good- pleading requires that the complaint in a cause like this should show that the plaintiff’s property Avas injured by the construction of the embankment and the nature and character of the injury. Less than this would not give the defendant any notice as to t-lie injury and damage relied upon. It was not sufficient in this respect merely to aver the conclusion that-the lot Avas damaged on account of tlie construction of the embankment, but the, defendant was entitled to be informed by the complaint of the nature and extent of the injury done the property. The facts from which the conclusion of damages to the property was deductible should have been succinctly stated. The conclusion is that the demurrer to the first count should have been sustained, and the court erred in overruling it.- — Mayor & Aldermen v. Ewing, 116 Ala. 576, 22 South. 984; City Delivery Co. v. Henry, 139 Ala. 161, 34 South. 389; Commissioners’ Court of Perry County v. Md. Society, 128 Ala. 257. 29 South. 586; City Council of Montgomery v. Gilmer, 33 Ala. 116, 70 Am. Dec. 562; Town of Avondale v. McFarland, 101 Ala. 381, 73 South. 504; M. & M. Ry. Co. v. A. M. Ry., 116 Ala. 51, 23 South. 57. The second count of the complaint was not subject to the demurrer.

The third and fourth grounds of error are not insisted upon in brief of counsel, and are therefore waived However, as the case must go back to be tried again, we remark that there was no error in the rulings of the court upon which these grounds of error are based.

The rule for the admeasurement of damages applicable to the case, if the plaintiffs are entitled to recover, is the difference between the market value of the lot before and after the construction of the embankment— the diminution in value produced thereby. — City Council of Montgomery v. Townsend, 80 Ala. 491, 2 South. 155, 60 Am. Rep. 112; City Council of Montgomery v. Maddox, 89 Ala. 181, 7 South. 433; Mayor and Aldermen of Huntsville v. Ewing, 116 Ala. 576, 22 South. 984. The plaintiffs were tenants in common of the property. There were originally seven of them. After the evidence was closed the complaint was amended by striking out two of the plaintiffs. The measure of the recovery by the five would be five-sevenths of the total damage, ascertained according to the rule above stated.— Lowery v. Rowland, 104 Ala. 420, 16 South. 88.

What amount of material would be required to fill in plaintiff’s lot to bring it to a level with the car rail on the embankment was immaterial, and was not proper evidence with respect to the measure of damages. Hence the evidence of the witness Brown should not have been allowed over the objection made by the defendant.

The evidence without conflict showed that the five persons who remained as the parties plaintiff in the cause, after the amendment was made striking out two of the .parties plaintiff, were minors at the commencement of the suit and owners of an undivided five-seventh interest of the lot in question at the time the embankment was constructed. Then, of course, their right of action accrued while they were minors, and under the evidence the statute of limitations had no field of operation in the case; and charges 1, 2, 3, and 4, given at the request of the plaintiffs, in so far as they attempt to exempt plaintiff from the statute of limitations, abstractly speaking, were not objectionable. — Code 1896, § 2807.

But it is insisted by the appellant that under the evidence and the pleadings (the averments of the complaint) the charges were inappropriate and were erroneously given. The complaint alleges, the embankment was constructed during the months of May, June, July, August and September; but the averment is under a videlicet. The evidence without conflict showed that the greater portion of the embankment was constructed during the spring of 1902, and from that time until July, 1903, nothing more was done, and the construction of the embankment was completed in the fall of 1903, and prior to the commencement of the suit. The argument of the appellant is that by the averments of the complaint, notwithstanding- the minority of the plaintiffs, their right of recovery was confined to damage accruing during and after the time alleged in the complaint up to the'commencement of the suit. In this view of iiie case, these charges 1, 2, 3, and 4 of the plaintiff’s series may be misleading in their tendencies; but this would not make the giving of them error, as the defendant could have had protection by requesting an explanatory charge.

The first five charges in the defendant’s series were in effect affirmative charges to find for the defendant. There was evidence in the case tending to support plaintiffs’ right of recovery in all respects but one. There was an entire lack of evidence that the defendant in constructing the embankment was operating under a privilege or franchise as alleged in the complaint. The averment was a material one in the complaint. The court, was not required to take judicial knowledge of the fact that the defendant was operating under a privilege granted by the. city. Without evidence of it the plaintiffs failed to make out their case, and the defendant was entitled to have the court give to the jury charges" 1, 2, and 3, as requested by it in writing.

It. is not necessary, in the light of what we have said, to comment on charges 4, 5, 8, 9, 10, 11, 13, 14, and 15 further than to say that they were, inapt. It is sufficient to say of charges 6 and 7 that they were abstract. But we think the charges do not state correct propositions of law. — Code. 1896, § 1718; Hooper v. S. & M. R. Co., 69 Ala. 529. Charge 16 was not a correct statement of law. — Code-1896, § 3331; Lowery v. Rowland, 104 Ala. 420, 16 South. 88.

For the errors pointed out, the judgment of the circuit court must he reversed, and the cause remanded.

Reversed and remanded.

Haralson, Dowdell, and Anderson, JJ., concur.