« ZurückWeiter »
they believed the evidence as to the wires being left in the store under the circumstances detailed before them, was whether these wires inducted atmospheric electricity into the store and discharged the current upon the person of the plaintiff, and whether she was injured thereby. To say the least, the evidence was overwhelming, though not, perhaps, to the exclusion of all ground for a contrary inference, to the establishment of the injury and of the causal connection between the wrong and it. It follows that the court properly refused to give the general affirmative charge, and the affirmative charge on count 6 for the defendant. For reasons given hereinbefore in connection with what is said last above the refusal of the affirmative charge on count 4 involved no injury to the defendant.
Having, as above declared, reached the conclusion that the plaintiff was entitled to the affirmative charge on the question of negligence, it is unnecessary to discuss the refusal of the court to give charges 4, 5, 6 and 7.
We find no ground for reversing the judgment in the record, and it is affirmed.
It is the Duty of Electric Companies to exercise the utmost caro to prevent injury to persons coming in contact with their wires, Whether or not thig duty has been performed is ordinarily a question for the jury: Fitzgerald v. Edison Electric etc. Co., 200 Pa. St. 540, 50 Atl
. 161, 86 Am. St. Rep. 732, and cases cited in the cross-reference note thereto.
MCLEAN v. WRIGHT.
(137. Ala. 644, 35 South. 45.] ATTACHMENT BONDS are Valid although the names of the obligors signed at the bottom of the bonds do not appear in the body thereof. (p. 68.)
ATTACHMENT BONDS_Defective Affidavit.-An attachment bond is not rendered invalid by reason of the fact that the affidavit úpon which the writ of attachment was issued disclosed no statutory ground for the issuance of the attachment. (p. 68.) Barnes & Duke, for the appellant.
647 TYSON, J. This action is brought upon an attachment bond, and seeks to recover damages for an alleged breach of it. The complaint as originally framed contained only one count. That count was amended, as was the complaint, by the addition of a second count. A demurrer to both counts was sustained, and, plaintiff declining to plead over, judgment was entered for
defendant. Appellant's counsel, in their argument, only insist upon the sufficiency of the added or second count. The bond, the foundation of the suit, is set out in full, as also is the affidavit upon which the writ of attachment was procured. In the body of the former only the name of the principal appears, and its condition is to pay all such damages as the plaintiff in this suit may sustain by the wrongful or vexatious suing out of the attachment writ, etc.
The affidavit discloses no statutory ground existing for the issuing of the attachment. The complaint, however, avers that the attachment was procured upon the filing of the bond and affidavit, and that no statutory ground existed for its issuance. It also avers the levy of the writ upon a stock of goods belonging to plaintiff, etc., to her damage, etc.
The first ground of the demurrer challenges the validity of the bond on the ground that the name of two of the defendants, who signed it as sureties, at the bottom, 648 do not appear in its body. There is no merit in this objection: Grimmet v. Henderson, 66 Ala. 521. Other grounds raise an objection to the validity of the bond on account of the defect in the affidavit pointed out above. It is true section 527 of the Code imposed the duty upon the officer before issuing the attachment in this case to require the plaintiff to make affidavit that one of the statutory grounds (Code, sec. 525) existed, but we apprehend that his failure to do so, or his issuance of the writ upon an affidavit not complying with the requisitions of the statute, cannot relieve the obligors on the bond, also given as required (Code, sec. 528) as the condition to its issuance of their contractual undertaking to pay plaintiff all such damages as she may sustain by the wrongful or vexatious suing out of the attachment. Their undertaking is valid and binding, although the writ may be quashed upon proper steps taken by defendant in the attachment case, unless the affidavit be amended, which can be done: Code, sec. 564. Indeed, if the statute permitted no amendment of the affidavit so as to cure the defect and the writ was void, this would not destroy the binding efficacy of the bond: Zechman v. Haak, 85 Wis. 656, 56 N. W. 158. As said in that case: "It was voluntarily entered into by defendant for the purpose of procuring the seizure of plaintiff's property under the writ of attachinent, and it accomplished that result, to the great damage and injury of plaintiff. ....
Why should be be relieved from liability merely because the seizure of plaintiff's property be thus procured to be made was illegal? It
seems to us that such illegality is an unanswerable reason why he should be held liable." At best, the defect under our state utes, being curable by amendment, it amounts to no more than a mere irregularity, of which the defendants of course cannot take advantage: Brown v. Tidrick, 14 S. Dak. 249, 86 Am. St. Rep. 754, 85 N. W. 185.
On the averments of the complaint it is entirely clear that the plaintiff is entitled to recover at least nominal damages and reasonable counsel fees alleged to have been incurred by her in defending the attachment suit, which we hold is sufficiently arerred.
649 We have examined the other grounds of the demurrer, and find no merit in any of them.
Reversed and remanded.
Bonds or Undertakings intended to be given in compliance with statutes, although having failed in substantial compliance therewith, will, if entered into voluntarily by competent parties, upon a sufficient consideration, constitute valid common-law obligations: Portland v. Bituminous Pav. Co., 33 Or. 307, 72 Am. St. Rep. 713, 52 Pac. 28; note to Estate of Ramsay v. People, 90 Am. St. Rep. 200. And an attachment bond is within this rule: Barnes y. Webster, 16 Mo. 258, 57 Am. Dec. 232.
In an action on an Attachment Bond, the parties are estopped to question the regularity or lawfulness of the attachment: Brown v. Tidrick, 14 8. Dak. 249, 86 Am. St. Rep. 754, 85 N. W. 185; Haggart v. Morgan, 5 N. Y. 423, 55 Am. Dec. 350.
DENNIS V. MOBILE AND MONTGOMERY RY. CO.
[137 Ala, 649, 35 South. 30.) NUISANCE, Public--Abatement by Private Individual.--The jurisdiction of equity to restrain a public nuisance at the suit of å private individual is exercised only when he has a legal right and is without other adequate remedy at law for its enforcement. Hence a bill filed by a private individual for such purpose must not only show that the complainant will sustain injury distinct from that which he will suffer in common with others, such as would furnish the basis for an action at law, but it must go further, and show that the injury from the nuisance will be irreparable, or will be such that complete compensation therefor cannot be obtained in a single action at law. (p. 72.)
NUISANCE, Public-Abatement by Priyate Individual.-In an action by a private individual to abate a public nuisance, the injury will be considered irreparable so as to entitle bim to relief When the resulting damage will be incapable of being measured by a pecuniary standard, and when, without assistance in equity, the injured party must suffer invasion of his substantial rights without
compensation, or when if reparation were sought in the law court, the remedy would involve a multiplicity of suits by the same plain. tiff. (p. 72.)
NUISANCE, Public-Abatement by Private Citizen — Pleading.–An averment by a private individual seeking to abate a public nuisance, of a mere conclusion as to inadequacy of legal remedy, or as to the irreparable character of the injury, without an averment of facts to support the conclusion is insufficient. (p. 73.)
NUISANCE, Public Abatement by Private IndividualRemedy at Law.–Although an obstruction constitutes a public nui. sance causing actionable injury to a private citizen, yet if such ob. struction is permanent, and the defendant is not insolvent, and a single action at law for damages will furnish a full remedy for such injury, a resort to equity hy the injured party for the mere purpose of abating such nuisance is unwarranted. (p. 74.)
0. C. Maner and A. L. Tyson, for the appellant. J. M. Falkner and C. P. Jones, for the appellee.
654 SHARPE, J. In April, 1896, the city council of Montgomery adopted an ordinance embodying an agreement with the defendants, wherein it was stipulated, among other things, that the defendant, the Mobile and Montgomery Railroad Company, should erect a freight station building not less than five hundred and thirty-five feet long and two stories high, on a strip of land which extended across what had to that time been a part of Lee street at or near the north end of that street, and also to erect on the north side of the freight building and parallel therewith a passenger depot building three hundred and nine feet in length, and to maintain a private street not less than thirty-five feet wide along the south side of the freight building, so as to intersect an alley at that building's east end, and a street at its west end, and also to maintain a private street extending past and between the two buildings; and it was further stipulated that in consideration of those and other specified undertakings, Lee street should terminate where it intersects the property of the Mobile and Montgomery Railroad Company, and that the portion of it extending northward beyond that point of intersection, including the site of the proposed freight building, should be discontinued and abolished as a street.
The foregoing and some other statements to be herein made are condensed from the amended bill, including exhibits thereto, which comprise the ordinance referred to and maps of the locality. Words we use to indicate directions are to be understood as only approximately correct.
656 The bill alleges in substance that one or the other of defendants has caused to be erected a magnificent and im
posing structure along Water street immediately at the head of Lee street along the Alabama river, known as the "Union Depot," and that one or the other of the defendants has caused to be built a two-story freight warehouse across Lee street, and that these buildings are controlled and operated by the defendant, the Louisville and Nashville Railroad Company. The map shows this union depot building occupied the site designated for the passenger depot in the ordinances mentioned, and that the freight warehouse is where, according to the ordinances, the freight building was to be. The bill further alleges in substance that the city council had no power to abolish Lee street or to authorize the maintenance of the freight building or the standing of cars in that part of the street, and that the freight building prevents Lee street from being used as a means of connection and travel from any part of the city to the union depot, and that complainant owns a lot which fronts on the west side of Lee street. We quote from the bill that this lot is "situated about six hundred feet from said union depot and is located in such manner as to make it very valuable for the purpose of a modern hotel and retail stores, and that the house now on said lot is used as a boarding house, for the accommodation of the traveling public as well as tho people residing in the city, and that by reason of said freight depot destroying the access on Lee street between the union depot and the property of complainant, travel is diverted from Lee street to the other streets, and as a result thereof complainant's property is irreparably damaged and will never be valuable for the purposes above stated as long as said depot remains across said street, and his boarding-house is now damaged in that a great portion of the traveling patronage of boarding houses is diverted to other streets and to other boarding-houses"; and "that the loss and injury to the orator in diminishing the value of his property facing and abutting on and along said street cannot be estimated in money, nor adequately compensated for by pecuniary damages, 666 and that such occupation and appropriation by said railroad companies of said street is a daily and continuing nuisance of special and particular injury to your orator beyond the injury which the public generally has sustained thereby and now greatly injures orator, and will continue to be more injurious and damaging to him in the near future. That said structure, as well as closing up said Lee street greatly impairs not only your orator's personal right to use and enjoy the street, but the right of the general public