Corona Coal Co. v. Hooker , 204 Ala. 221 ( 1920 )

The cause of action sufficiently appears by reference to count 1 of the complaint, which will be set out in the report of the case. The second and third counts are identical with the first, with the exception of different dates being shown concerning the overflow on the land. The cause was tried upon the joinder of general issue upon these three counts. It is to be noted that these counts show that the stream of water known as Lost creek flows through the plaintiff's land, and that coal dust and other débris from defendant's mine and coal washer were not placed directly into Lost creek by the defendant, but into a nearby stream, leading from the defendant's mines, flowing into Lost creek.

It is insisted that the demurrer taking the point that no cause of action was stated, because the complaint shows that the débris was not placed in Lost creek, should have been sustained. We think it needs no discussion to show that this insistence is without merit. Tutwiler Coal, Coke Iron Co. v. Nichols, 146 Ala. 364, 39 So. 762, 119 Am. St. Rep. 34. That there was sufficient evidence to sustain every material averment of fact set forth in the complaint does not seem to be questioned upon this appeal.

It is strenuously insisted, however, that the defendant was entitled to the affirmative charge on account of the failure of proof of any negligence on the part of the defendant, and that there was a fatal variance between the allegations and the proof. This leads to a construction of the complaint. The averments of fact set forth therein clearly disclose that the plaintiff sought damages for the injurious consequences resulting from a nuisance, and that in the case as stated the negligence of the defendant was not an essential element. The word "negligence" or "negligently" does not appear in the complaint, except in the last paragraph thereof. The complaint itself contains no charge of negligent conduct, but the pleader in the closing paragraph merely averred that the damages were a proximate consequence of negligence and wrongs previously enumerated. It therefore appears that the cause of action was entirely sufficient and complete without the addition of this last paragraph. Tutwiler Coal, etc., Co. v. Nichols, supra; Savannah, etc., Ry. Co. v. Buford, 106 Ala. 303, 17 So. 395; Lindsey v. So. Rwy. Co., 149 Ala. 349, 43 So. 139; Harris v. Randolph Lbr. Co., 175 Ala. 148, 57 So. 453; Alabama Western Ry. Co. v. Wilson, 1 Ala. App. 306, 55 So. 932. In the Buford Case, supra, it was held that the averments of the complaint in regard to negligence should be rejected as mere surplusage, which language is quoted in Lindsey v. So. Rwy. Co., supra, where it was again held that the averment of negligence was unnecessary. The words "negligence" and "negligently," found in the last paragraphs of the complaint, therefore, constitute surplusage, which need not be proven. Speaking to this question this court, in Prestwood v. McGowan,148 Ala. 475, 41 So. 779, said:

"Greenleaf states that 'surplusage need not be proved,' and that 'the term "surplusage" comprehends whatever may be stricken from the record without destroying the plaintiff's right of action; as if, for example, in suing the defendant for a breach of warranty upon the sale of goods, he should set forth, not only that the goods were not such as the defendant warranted them to be, but that the defendant well knew that they were not.' 1 Greenleaf on Evidence (15th Ed.) § 51. And he defines a variance to be 'a disagreement between the allegation and the proof, in some matter which, in point of law, is essential to the charge or claim, * * * or to have become so by being inseparably connected, by the mode of statement with that which is essential.' "

The case of A. G. S. R. R. Co. v. McFarlin, 174 Ala. 637,56 So. 989, and authorities there cited, clearly demonstrate there was no fatal variance. The affirmative charge was therefore properly refused. Of course, it is recognized that negligence may be constituted a material part of the complaint, and this court so construed the last count of the complaint in Ala. Fuel Iron Co. v. Vaughn, 203 Ala. 461, 83 So. 323.

Appellant's counsel lays much stress on the recent case of Jones v. Tenn. Coal Iron Co., 202 Ala. 381, 80 So. 463; but the question here considered was not there presented. The substance of the holding is found stated in the language of the opinion, which pointed out that every issue presented by the evidence was submitted to the jury under counts 1 and 2, charging the maintenance of a nuisance.

We do not think there was reversible error in sustaining the objection of plaintiff to the question propounded to the witness Hooker, as to whether or not the plaintiff had made application to the taxing board to have the assessment on his land reduced for the past two years.

Nor was there error in refusing charge 16, requested by the defendant, to the effect that the plaintiff was only entitled to collect such damages as were caused by the deposit upon the land by the overflow mentioned. Plaintiff alleged that the stream flowing through his land was polluted to such an extent as to render it useless for watering stock and other purposes, and there was evidence from which the jury could infer that such pollution of the stream would have a depreciating effect on the market value of the farm land. This charge, therefore, placed too narrow a limitation upon recoverable damages.

We find no reversible error in the record, and the judgment appealed from will accordingly be affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur.