Atlantic Coast Line Railroad v. Knapp , 139 Ga. 422 ( 1913 )

Lumpkin, J.

(After stating the foregoing facts.)

1. There was no error in overruling the demurrer based on the ground that the petition set out no cause of action. It alleged the creation of an abatable private nuisance, 'and its maintenance by the defendant after notice to abate it, with resulting damages.

2. One ground of the demurrer was aimed at the allegation that a suit had been brought in 1901 in the same court against “the defendant company then known as the Savannah, Florida and Western Eailway Company,” that a nonsuit had been granted, and that costs were paid and the present ’action was brought in renewal thereof within six months after the nonsuit. The contention is that this was not a renewal within the meaning of section 4381 of the Civil Code, as to the effect on the statute of limitations. We can not assent to this position. It was alleged that pending the first suit there was a merger of the Savannah, Florida and Western Eailway Company with the Atlantic Coast Line Eailroad Company and under the name of the latter, that the first-mentioned company went out of existence, and its property was taken over by the defendant, which assumed all of its debts and liabilities, and that no other provision for the payment of its debts was made. Assuming this to be correct, the defendant became answerable for- the liabilities of that company. Atlantic & Birmingham Ry. Co. v. Johnson, 127 Ga, 392 (56 S. E. 482, 11 L. R. A. (N. S.) 1119). It has been held that the code section above cited is the codification of a remedial act, 'and should be liberally construed. Cox v. Strickland, 120 Ga. 104, 111-112 (47 S. E. 912, 1 Ann. Cas. 870). To hold that the suit against the Savannah, Florida and Western Eailway Company could be renewed, that by the merger the Atlantic Coast Line Eailroad became liable for the tort of the former company and could be sued for it, that the constituent company could no longer be sued separately, but that the suit could not be renewed against the company formed by the merger, so as to affect the bar of the statute of limitations, wordd be a narrow and strict construction.

3. The contention that the 'action was barred by the statute of limitations is covered by the ruling in Gabbett v. City of Atlanta, 137 Ga. 180 (73 S. E. 372), and the cases there cited. The petition set forth not only the creation of a nuisance, but its continuance by the defendant after notice to abate. It was of a character, under the allegátions, which could and should have been abated. Whether an action for the creation of the nuisance was barred or not, the suit should not have been dismissed on general demurrer, if the action for the maintenance was not barred.

4. If the same person creates and maintains a continuing, abatable nuisance, there is no misjoinder in alleging both in the same action. If there is in law an identity between corporations, or a responsibility on the part of one person for the conduct of another in creating and maintaining a nuisance, so that legally the case stands as if the responsible person had himself committed the tort, there is likewise no misjoinder of causes of action. Civil Code, § 5521. The decision in Southern Railway Co. v. Cook, 106 Ga. 450 (32 S. E. 585), cited by counsel for the demurrant, does not conflict with the ruling now made.' There an action ■ was brought alone for the erection of a nuisance on real estate. The evidence showed that it had not been erected by the defendant, but by a predecessor in title. It was held that there was a variance between the allegation and proof. This was in accord with Civil Code, § 4458, which declares that the alienee of property causing a nuisance is responsible for its continuance, but there must be a request to abate before action is brought. No allegation of a request to abate was there made, nor was there any question of merger or consolidation.

We do not mean to hold that a plaintiff could recover for a nuisance both as permanent and non-abatable in character, and causing the entire injury at once, and also for its continuance as abatable; but the allegations here do not make that case.

5. There was no error in overruling the ground of the demurrer which set up the contention that there was a misjoinder of actions, because suit was brought for an alleged tort and also on an alleged contract of merger. The suit was not on a contract, but the merger was alleged to show the legal responsibility of the defendant for the tort of one of its constituent companies.

6. The plaintiff sought to recover for his mental pain and anxiety on account of the sickness of his family. This is not a proper element of damage, and should be eliminated. Loss of services of a child may be an element of recovery, with proper allegations, but not anxiety and worry about him.

One ground on which the plaintiff sought to recover, and which was pleaded as an element of damage, was that, on account of the unhealthy condition of the place where he lived, caused by the pond, he had to move to a town some four miles away, and there rent a house at sixty dollars per year for four years. He also 'alleged that, on account of the distance and his physical condition, he was unable to walk back and forth between his new residence and his farm, and that he had to buy and “keep up” a horse and buggy at a cost to him of a hundred and twenty dollars a year, amounting to $840 for seven years. He sought to recover these two items of damage. We think they were too remote to be recoverable. Probably the diminished rental value of the farm before he sold it would be a proper subject of consideration, or, if the residence were rendered uninhabitable, possibly an expenditure equivalent to the rental value thus lost might be considered. But a mere allegation that he moved from a farmhouse to a town residence some miles distant, for which he paid a certain amount during four years, is too speculative to furnish a basis for recovery.

As to the horse and buggy, apparently the plaintiff still owns them, or their proceeds, as there is no allegation to the contrary. So that, if the element of damage pleaded on that account were allowed, he would not only recover the actual expenses incurred by him in going to his farm and returning home, but would’have the purchase-price of his horse and buggy paid, and the cost of maintaining them for seven years, while they may have been used for many other purposes besides going to the farm, and finally would own the horse and buggy for future use, though he has sold the farm several years since. Such a claim for damages, is too speculative.

We direct that the judgment overruling the demurrer be so amended as to strike the claim to recover for the plaintiff’s mental pain and anxiety on account of the sickness of his family, on account of the amount paid for the reptal of a residence in the town of Metcalfe, and on account of the purchase and maintenance of a horse and buggy. The other grounds of the demurrer were properly overruled.

Judgment affirmed, with direction.

Beck, J., absent. The other Justices concur. .