Ex Parte City of Birmingham , 212 Ala. 552 ( 1925 )

Two objections are taken to the opinion of the Court of Appeals in this case:

1. As stated by the Court of Appeals, the third count of the complaint alleged that the nuisance complained of, a pile of garbage, trash, and débris dumped and maintained by defendant, caused special damage, in that "his residence was rendered less pleasant and habitable as a place of residence for plaintiff and his family." The Court of Appeals held this to be the allegation of injury to plaintiff's interest in his residence and so unaffected by the statute which requires the filing of claims for personal injuries within ninety days. This decision is said to be at variance with the ruling of this court in Birmingham v. Prickett, 207 Ala. 79, 92 So. 7. But the count considered in that case, in addition to the allegation quoted above, alleged that —

"Plaintiff at his said residence, and within the curtilage thereof, was compelled to inhale unpleasant, vile, offensive and unhealthy odors, gases and smoke from said garbage, trash or débris, and was made sick," etc.

The Court of Appeals in this case has shown that "the court" (meaning this court) "in the Prickett Case held that the complaint claimed damages for personal injuries, but did not hold that it did not also claim damages for injury to the home or residence of the plaintiff," and, accordingly, held that the count claimed damages for injuries to the residence and allowed a recovery on that theory. In this we think the Court of Appeals ruled correctly.

2. In the second place, it is insisted that the trial court erred in refusing charge 10 requested by defendant, which is shown in the report of this case. On this subject the Court of Appeals had nothing to say; but the opinion of the court states facts which, in connection with the right record, enables this court to say that there was no error in the action of the trial court. It was alleged in the complaint that the nuisance complained of was "in or close to the residence of plaintiff and others in his community, * * * thickly populated," and petitioner, appellant, defendant in the trial court, insists that plaintiff showed no damage beyond that suffered by the general public, no injury peculiar to himself or his property, and for that reason should not have been allowed to recover, citing Walls v. Smith, 167 Ala. 138, 52 So. 320, 140 Am. St. Rep. 24; Sloss-Sheffield Co. v. Johnson, 147 Ala. 384,41 So. 907, 8 L.R.A. (N.S.) 226, 119 Am. St. Rep. 89, 11 Ann. Cas. 285; Gulf States Steel Co. v. Beveridge, 209 Ala. 473,96 So. 587; and Crommelin v. Coxe, 30 Ala. 318, 68 Am. Dec. 120.

The holding of these cases and numerous others of like character is that a party injured by a public nuisance may recover for special damages beyond those suffered by the public generally. It will suffice to say, in this connection, that when plaintiff proved a diminution of the rental value of the property occupied by him under lease, he proved a special damage peculiar to himself and beyond that suffered by the public, and was entitled to recover on that ground, as the cases cited abundantly show.

Certiorari denied.

ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.