Opinion
No. 34087.
March 18, 1940. Suggestion of Error Overruled April 15, 1940.
1. MUNICIPAL CORPORATIONS.
In property owner's suit against city for damages allegedly resulting from negligent construction and maintenance of culvert, evidence held to make jury questions on whether sewer pipe maintained in culvert was necessary, and whether unprecedented rainfall contributed to plaintiff's damages.
2. MUNICIPAL CORPORATIONS.
Damages are not allowable under constitutional provision for compensation for private property taken or damaged for public use, under declaration grounded directly and solely upon city's negligence in constructing and maintaining culvert (Const. 1890, sec. 17).
3. APPEAL AND ERROR. Municipal corporations.
In action against city for damages to property allegedly caused by negligence in constructing and maintaining culvert, instruction that jury should find for plaintiff unless damage was caused solely by unprecedented rainfall was reversibly erroneous, since defenses available to city in suit for damages under constitutional provision governing taking property for public purpose, and in suit on theory of negligence, are different (Const. 1890, sec. 17).
APPEAL from the circuit court of Lauderdale county; HON. ARTHUR G. BUSBY, Judge.
Howard Westbrook, of Meridian, for appellant.
The instructions granted in this case to the appellee are not sound as law and in hopeless conflict with those granted the appellant.
City of Vicksburg v. Porterfield, 164 Miss. 581, 145 So. 345; Cain v. City of Jackson, 169 Miss. 96, 152 So. 295.
The court granted the following instruction to the plaintiff and appellee: "The court instructs the jury to find for the plaintiff unless you believe from a preponderance of the evidence that the plaintiff's damage, if any, was caused solely by an unprecedented rainfall, that is to say, one that could not have been reasonably anticipated.
The foregoing instruction it nothing more or less than a peremptory to find for the plaintiff, and eliminates entirely the question of negligence of the city as contributing to any alleged injury and damage.
The appellant's instruction undertook to announce the theory of liability, which this court has previously adhered to, and that is that the obligation is on the city to exercise reasonable and ordinary care in the maintenance of its drains so as to provide adequate facilities.
Moreover, there is no testimony in this record by which the instructions granted to the appellee could be justified.
Certainly, it cannot be reasonably argued that any overflow on the property of this appellee or any citizen is negligence per se. The measure of liability in the first instance is negligence in this type of case and the decisions of this court, particularly the two hereinbefore set forth, are in accord with the announcement generally and in accord with 6 McQuillan Municipal Corporations, Revised Ed., Section 2874, which says among other things: "A municipality must exercise ordinary care to maintain in proper manner a system of gutters and drains constructed by it in its streets, and if due to its negligence they become obstructed so as to overflow and flood the private premises of a basement, the city will be liable."
The amount of the jury award is wholly excessive of any damage actually sustained.
Even if the court should hold that this appellee was entitled to damage which we respectfully submit that he was not, on the state of this record, we submit that he would only be entitled to nominal damages under the case of Watkins et al. v. The Board of Mayor and Alderman of the Town of Port Gibson, 113 Miss. 38, 73 So. 867, and as the court said in that case this cause should have been dismissed as a frivolous case.
The allegations of negligence on the part of the appellant were not sustained, and the peremptory instruction was proper in this case.
Chidsey v. The City of Pascagoula, 102 Miss. 709, 59 So. 879.
While the amount of this verdict is small, compared to other verdicts that were rendered by juries, yet it is unconscionable on the record in this case. Unquestionably the hopeless conflict in the instructions of the respective parties is sufficient in itself to reverse and remand this cause. Undoubtedly the verdict when viewed from the damages actually proved is so large that in itself it would require either a remittitur or a reversal and remanding. However, the controlling factor in the decision of this case, we respectfully submit, is that appellee has wholly failed to meet the burden placed upon him in actions of this character by law, and that the evidence wholly fails to show neglect, but on the other hand overwhelmingly shows a lack of negligence and therefore we respectfully submit, in conclusion, that the proper judgment of this cause is a reversal and rendition by this court.
Appellee says that the judgment of the lower court should be affirmed for three reasons. In the first place, he says he is now under Section 17 of the Constitution, although the case was never filed or tried on such a theory, and matters of proof that would have been necessary under this theory of liability have not been developed by either party to this appeal. Second, that there has been an obstruction to a natural water course, by the appellant, which provision has been fully discussed both from fact and law in appellant's original brief. Third, that the appellant was conclusively shown to be guilty of negligence in the installation and maintenance of the culvert and pipe therein; and as we have undertaken to fully develop this proposition in the original brief we rely on fact and law, rather than upon the conclusion of appellee's counsel.
We respectfully submit that there can be no question but that prejudicial error was committed in the instructions granted in this case and in permitting the verdict in the amount that was returned to stand, but when the record is viewed in its entirety, failure on the part of the appellee to prove negligence and the conclusive proof of no negligence in this matter is sufficient to justify and require a reversal with judgment in this court for the appellant.
L.J. Broadway, of Meridian, for appellee.
The appellee's position is that his granted instructions fairly and correctly state the applicable law, and that if there is a conflict, the instructions granted the appellant are wrong and incorrect and grant him much more favor than he is entitled to under the law as announced by this court.
The main point in the case is whether the city is liable only for negligence.
The court will notice that the instruction here complained of is in almost identically the same language as Instruction No. 5 in the case of City of Vicksburg v. Porterfield, 164 Miss. 581, 145 So. 345.
No negligence need be proved in this type of action.
Thompson v. City of Philadelphia, 180 Miss. 190, 177 So. 39; N.O. N.E.R.R. Co. v. Burdette, 183 So. 915, 188 So. 14.
In Hodges v. Town of Drew, 172 Miss. 668, 159 So. 298, an action for damages from overflowing sewage and pollution of a natural body of water, the city was held liable, notwithstanding negligence was alleged and as against the contention that the act of the city was in the exercise of its police power of conserving the public health, a governmental function.
Plaintiff did not in the lower court and does not here rely upon any such doctrine as "negligence per se" and "res ipsa loquitur." Plaintiff simply says that where for a public purpose the city inflicts special damage on him, not common to the general public, then under Section 17 of the Constitution, he must be compensated.
40 Cyc. 569; 67 C.J. 698, sec. 21; Thompson v. Mobile, J. K.C.R. Co., 104 Miss. 651, 61 So. 596.
The second largest city in the state is appealing from a jury award of $500 against it, which award in addition has the deliberate approval of the trial judge; and that in a case where the substantially undisputed testimony shows that the plaintiff's premises had overflowed several times, that certain personal property was destroyed, his garden had to be replanted some 5 or 6 times, and the value of his premises reduced approximately 50%. He had invested about $2000 in the place, including purchase price and repairs made to it after he bought it, and this was his home place.
Johnson v. State, 154 Miss. 512, 122 So. 529; Goodyear Yellow Pine Co. v. Lumpkin, 158 Miss. 578, 130 So. 745.
I desire to cite the case of Southeastern Express Co. v. Namie, 182 Miss. 447, 181 So. 515, an en banc decision of this court, involving damage to inanimate freight in shipment.
The court there held that in that type of action it was not necessary to allege and prove negligence, and if negligence was alleged, and the proof thereof failed, still this would not deprive the plaintiff of a recovery, negligence not being an essential element of his cause of action. There the plaintiff specifically charged: "Negligently caused said furs to be placed upon and in close proximity to the hot steam pipes which supplied heat in said cars and negligently permitted the said furs to remain in that situation and exposed to a high degree of heat for a period of several hours."
The court held that notwithstanding such a specific charge of negligence, it did not have to be proved and the plaintiff was allowed to recover.
Miss. Power Light Co. v. Pitts, 181 Miss. 344, 179 So. 363; 49 C.J. 787, 788.
The plaintiff has proved that he sustained special damages not common to the general public caused by the obstruction of a natural stream or watercourse for public uses.
Negligence is shown by the record.
Even if proof of negligence should be required, the undisputed proof, in fact the city's own proof, shows its guilt of negligence, and therefore instead of the city being entitled to a peremptory, the plaintiff was entitled to one.
There are at least three theories upon which the judgment of the lower court can be sustained. They are: First, that the plaintiff has caused special damage not common to the general public by these repeated overflows of his property due to the maintenance of the sewer pipe in the culvert, that is, a public use, and therefore under Section 17 of the Constitution should be compensated therefor; second, that the city has obstructed a natural drain or watercourse, one wherein water flows continuously, causing plaintiff damage; and third, the city was conclusively shown to be guilty of negligence in the installation and maintenance of this sewer pipe through the culvert, as well as in the maintenance of the culvert.
The appellee, J.L. Peavy, sued the City of Meridian for damages to his real and personal property, as alleged in his declaration, and to some extent sustained by proof introduced by him to the effect that the City had negligently constructed and maintained a culvert across Fifth street, abutting on his property. On the conflicting evidence as to whether or not the City was negligent in the matter the jury returned a verdict in favor of Peavy in the sum of $500, judgment was entered accordingly, and a motion for a new trial by the City was overruled.
The negligence charged, and to a certain extent sustained by the evidence, was to the effect that the City had constructed, or had adopted after construction by the State Highway Department, a culvert four feet by four feet, across the highway, in which it had placed a sewer pipe about nine inches in diameter, which obstructed the culvert to that extent. From the bottom of this sewer to the bottom of the culvert was about fifteen inches; and from the top of the sewer to the top of the culvert was in excess of twenty-inches.
It was shown by witnesses that the presence of this sewer pipe in the culvert caused debris and sand to collect therein, impounding the water, and backing it up over the real property of appellee, causing the pillars supporting his residence to sink, thereby depreciating its value about fifty per cent; and had also destroyed his garden five times in one season.
On the evidence it was a question for the jury whether or not the sewer pipe thus maintained in the culvert was necessary to the proper construction of the sewer line, and of the culvert. The declaration was based strictly upon the question of the City's negligence, and the evidence in the case, and the instructions were pointed directly at the issue of negligence.
The appellee, plaintiff in the court below, procured this instruction: "The court instructs the jury to find for the plaintiff unless you believe from a preponderance of the evidence that the plaintiff's damage, if any, was caused solely by an unprecedented rainfall, that is to say, one that could not have been reasonably anticipated."
Evidence was offered by the appellee, as well as by the appellant, in the court below, that either in the month of March or April, 1937 or 1938, there had been an unprecedented rainfall on a particular day. However, it was shown by the appellant that during the months of March and April, 1937, there had been no such rainfall. In fact, each day was accounted for by the government weather bureau reports for Meridian, showing less than half the normal rainfall on any day during those months; but that in the year 1938 there had been an unusual amount of rain. Peavy himself testified that there had been other heavy rains during the eight or nine years he had occupied the premises; and a witness for the City testified that in 1936, on a particular occasion, there had been a rain exceeding in amount within a short time the rainfall of 1938. So there was an issue of fact as to whether or not there was an unprecedented rainfall at any time covered by the evidence in the case.
It will be observed that the instruction quoted above is peremptory on a direct conflict in the evidence as to whether or not the city had been negligent, and was in direct conflict with all the other instructions for both appellant and appellee.
In this situation the only argument offered by the appellee to sustain the propriety of this instruction is that under section 17 of the Constitution of 1890 he was entitled to recover from the City for damage to his real property, citing Hodges v. Town of Drew, 172 Miss. 668, 159 So. 298, and Thompson v. City of Philadelphia, 180 Miss. 190, 177 So. 39, in which were allowed damages to real property under section 17 of the Constitution of 1890. In those cases, however, it is clear that the court deemed the declaration sufficient to sustain the action for such damages.
The theory of the allowance of damages under said section 17 is not maintainable under the declaration filed in this case, which is grounded directly and solely upon the negligence of the City. The defenses available to the appellant in a suit for damages under the constitutional provision, and such suit on the theory of negligence, are entirely different, as disclosed by the opinions in the cases referred to.
The instruction cannot be justified, and the case is controlled by the case of Chidsey v. City of Pascagoula, 102 Miss. 709, 59 So. 879, wherein the court said: "The cause of action in the present case is not predicated upon section 17 of the Constitution; it being charged by the declaration that the injury to plaintiff's property was caused by the negligent construction of the sidewalk and street grade. The only issue presented to the trial court was whether or not the city was negligent. In fact, the pleadings charged, and all the evidence was an attempt to show, a negligent and careless change in the plans of the street grade. This being the issue made by the pleadings, the question of negligence was submitted to the jury with proper instructions from the court."
The declaration in the present case has no allegation concerning condemnation proceedings by the county which originally constructed the culvert, nor as to the City after it was taken over and maintained by it, and this was not adverted to either in the pleadings or in the evidence. The Chidsey case cannot be fairly distinguished from the case at bar on the pleadings and the proof.
It is unnecessary for us to consider the question of an excessive verdict and judgment, for the reason that the case must be reversed because of the giving of the instruction quoted above.
Reversed and remanded.