City of Meridian v. Sullivan

Full title: CITY OF MERIDIAN v. SULLIVAN

Court: Supreme Court of Mississippi, In Banc

Date published: Apr 24, 1950

45 So. 2d 851 (Miss. 1950)

45 So. 2d 851

Opinion

No. 37477.

April 24, 1950.

1. Pleading — concurrent acts constituting single cause of action — one count.

When two acts of negligence concurrently contributed to the plaintiff's single claim of damage and the damage would not have resulted without the concurrence of both acts, both combining to make up one complete result, a declaration which embraced both acts in one count was proper and the objection that two causes of action were stated in one count was not well taken.

2. Damages — evidence — market value of residence before and after damage.

In an action for damages to plaintiff's residence because of negligence in city's drainage system, testimony of a real estate appraiser, familiar with land values of the vicinity, that the fair market value of the property immediately before the damage was $5500 to $6,000; that the market values of such property had remained stable, and that the property in its damaged condition was worth about $2000 was relevant and admissible.

3. Municipalities — damages from negligence in city's drainage system — case for jury.

When the city's culverts had become obstructed so as to prevent the flow of water through them and the flow was thereby greatly increased in a culvert on plaintiff's property connecting with the city culverts, in which culvert on plaintiff's property the city had broken a large hole through which large quantities of water were thrown upon plaintiff's residence lot and against and under the residence itself, undermining it and otherwise damaging the property, the question whether the city's alleged negligence proximately caused or contributed to plaintiff's damage was one for the jury.

Headnotes as approved by Hall, J.

APPEAL from the circuit court of Lauderdale County; JESSE H. GRAHAM, Judge.

Dunn Singley, for appellant.

I. The lower court erred in overruling appellant's motion to dismiss appellee's cause of action or to require appellee to elect which of three inconsistent causes of action combined in one count that she would proceed upon.

"It was not a case of a declaration stating a cause of action in one count one way and another way. It is a case of a declaration which states the cause of action in one count two ways, the grounds of liability being also inconsistent with each other." I.C.R. Co. v. Abrams, 84 Miss. 456, 36 So. 542.

Appellant's liability to appellee for failing to use reasonable care in the matter of its drains or culverts is separate and distinct from any trespass appellant might have committed in going upon the land of appellee and breaking the private culvert of appellee. In the former, appellant's liability is a continuing one; in the latter, there could be but one recovery for the breaking.

II. The lower court erred in permitting appellee's witness, Wilkins, to testify as to the value of the property involved upon the assumption as to the property being in a "fair state of repair in 1942 and 1943".

By framing the question asked the witness, Wilkins, "If in 1942, or anywhere between that time and 1943, if that property had been in good repair, what would have been the fair market value of it", appellee was calling for expert testimony. Being thus hypothetically put, the question must have included sufficient facts to afford ground for a reasonable conclusion. 22 C.J. 709, Section 796 (b).

The witness is not shown to have had personal knowledge of the property during the period fixed by the question (nor would such knowledge have aided the question as put) and, since these other factors were not given him by the question, his answers were valueless, and at the same time, highly prejudicial to appellant.

"The question should place before the witness sufficient facts to enable him to give a judgment which will be of value to the jury, and indeed it has been regarded as necessary that the question should assume all material facts relating to the subject on which the judgment of the expert is sought." 22 C.J. 710, Section 800 (ee).

III. The lower court erred in overruling appellant's motion for a directed verdict at the conclusion of appellee's evidence and at the conclusion of the evidence for both parties.

In the beginning, it is to be observed that no charge is made or proof offered, that appellant's culverts are inherently inadequate. Their normal ability to carry the water channeled through them from the natual bed of the creek is thus recognized. The liability of appellant, if any, must therefore be predicated upon appellant's failure to use reasonable care to maintain them — to keep them free of obstructions. Unless appellant failed to discharge this duty, it is guilty of no negligence and therefore not liable to appellee for any damage. City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; City of Vicksburg v. Porterfield, 164 Miss. 581, 145 So. 355; Cain v. City of Jackson, 169 Miss. 96, 152 So. 295.

It is evident that the drains in question have, from time to time, become stopped up. No testimony of witnesses is needed to overcome the natural assumption that a branch draining such a large area will tend to become full of debris. This Court recognized that in the Porterfield case, supra. Appellee's case, however, may not rest alone on the fact that they have, from time to time, become clogged but she must prove that appellant failed to use reasonable care to keep them open or adequate. That the drains became clogged or inadequate on a given occasion or from time to time does not, prima facie, prove the negligence of appellant in failing to use reasonable care. The doctrine of res ipsa loquitur has no application here. City of Natchez v. Cranfield, 155 Miss. 540, 124 So. 656. Now since appellee offered no proof that the clogged condition of the drains was a constant condition, a fact which the record shows did not exist, the issue must finally resolve upon what proof there is to sustain the issue that appellant was negligent in not using reasonable care to keep the drains open.

Appellant's proof showed that appellant did clean out the drains in question at least 15 or 20 times a year behind big rains which averaged those figures. This testimony of appellant is not denied nor was any effort made to rebut it by appellee. The record thus contains not only the uncontradicted proof that appellant did maintain its culverts and drains but contains appellee's own admissions that appellant did so. What issue was thus presented for jury determination? What was the theory upon which the verdict for appellee was returned? It could have been upon one of only three theories. First, that appellant is an insurer against damages occasioned by the temporary clogging of its drains. But this is not admissible for reasonable care is the measure of duty required of a municipality.

Second, that the mere fact that the damage happened was sufficient prima facie to show negligence. But the verdict cannot be sustained on that basis for the doctrine of res ipsa loquitur does not apply. This leaves only the third theory and that is appellant failed to use reasonable care in maintaining the culvert.

This theory must fall because,

(a) Appellee admitted the performance of appellant in this regard.

(b) Appellant's proof as to its performance is undenied.

(c) The failure of appellee to maintain her own culvert was the proximate cause of the damage.

To the above we can only add that the jury may have tried to award damages for the value of the broken culvert itself, but this may not stand for appellee laid no claims for such a damage.

We respectfully urge that the motion for a directed verdict should have been sustained.

Gerald Adams and M.V.B. Miller, for appellee.

Such wilful and arbitrary conduct on part of a municipality is seldom disclosed by a court record as is disclosed by the record in the case at bar.

The City of Meridian instead of removing the pipes crossing its Fifth Street culvert that were catching debris and trash therein so as to stop it up in 1943 as it finally did in 1945, its councilman in charge of streets, James Goodwin, knocked a large hole in appellee's culvert permitting water to escape therefrom onto appellee's property, informing appellee that he was doing so to take care of water that was backing up from the culverts "on the folks up there". That the ditch was stopped up and the water was backing up and overflowing therefrom. Appellant's Fifth Street culvert and Pacific Street culvert both became clogged at times, the effect of such being to force water that would normally go down through the culverts if same had not been clogged to the surface and across appellee's property "just like a river".

A case more like the case at bar than any other decided by this Court is that of City of Meridian v. Peavy, 188 Miss. 168, 194 So. 595, but not nearly as strong on the facts as is the case at bar, and also lacking the wilful and wanton feature present in the case at bar.

Complete answer to appellant's contention that there are separate and antagonistic causes of action stated in appellee's declaration is found in the case of Brown v. Mississippi Central R.R., 144 Miss. 326, 109 So. 796 and in Fewell v. Meridian, 90 Miss. 380, 43 So. 438.

In Jones on Evidence, Third Edition, page 1413, Section 894, is found: "Where evidence is objected to as inadmissible for certain specified reasons, the objection will be deemed limited to the grounds specified."

Brown v. State, 46 Fla. 159, 35 So. 82; Bailey v. Chicago, M. St. P. Ry. Co., 35 D. 531, 19 L.R.A. 653, 54 N.W. 596.

Counsel can not put the trial court in error by arguing before this Court objections to testimony that were not urged on the trial court. The witnesses Wilkerson and Kimbrough testified they personally were familiar with the property and values of real estate and gave answers on such facts.

Counsel asked his witnesses no hypothetical questions, then why should he ask that we be required to ask ours such questions?

At the close of appellee's evidence appellant made a motion for a directed verdict stating the grounds upon which he relied therefor.

In Gains v. Brannon, 139 Miss. 312, 104 So. 175 is found: "In determining the question whether or not appellants were entitled to a directed verdict, the evidence must be treated as proving every fact favorable to appellee's case which it established either directly or by reasonable inference.

Appellant in admitting "that appellee's property was flooded from time to time as a result of the drain being clogged" admitted itself out of court so far as its contention that the trial court erred in not sustaining its motion for a directed verdict. Here we have it admitted that not just once, an isolated instance, but on numerous occasions, appellee was damaged as a result of the drain being stopped up. This Court will not hold that a jury could not as a matter of law draw an inference that appellant was not negligent in permitting its culverts repeatedly or from time to time to clog up so as to again and again do further and more damage to appellee's property.

Under the statement in counsel's brief, it was not a case of whether an "ordinarily prudent person ought reasonably to have anticipated injury" to appellee "as a result of the drain being stopped up". Appellant knew the stopping up of the drains caused damage and yet from time to time permitted the condition to recur knowing that such recurrences would certainly damage appellee.

In arguing that the verdict is against the overwhelming weight of evidence, counsel urges that it was appellee's culvert connecting with appellant's Fifth Street culvert and its Pacific Street culvert that caused the damages to appellant, appellant contending that its culverts were not clogged so as to cause overflow but appellee's was so clogged.

Every witness purporting to have knowledge of the culverts there, whether testifying for appellee or appellant, testified that from time to time the city's culverts were clogged. None testified that appellee's culvert was ever clogged. Yet, counsel wants this Court to hold as a matter of law on the speculation of counsel, that the stopped up culverts of the city did not proximately contribute to appellee's damages but such was caused by a condition counsel speculates existed in appellee's culvert.

Hall, J.

The city appeals from a judgment against it in the sum of $1,500.00 for damages alleged to have been caused to appellee's property because of the diversion of drainage water upon it. The declaration was in one count and charged that the city had changed the course of a natural drain or small branch which crosses appellee's property and which also crosses two of the city streets, one on each side of her property, through box culverts constructed by the city; that appellee had constructed a box culvert across her property, connecting with those of the city on either side; that the city broke a large hole in appellee's culvert and negligently failed to keep its own culverts free from obstructions, as a consequence of which large quantities of water were caused to flow through said hole and upon the surface of appellee's property to the extent that much of the soil was swept away, the fences destroyed, and the dwelling and outhouses undermined and damaged.

Before the trial the city made a motion to either dismiss the action or require plaintiff to elect which of the three separate and inconsistent causes of action she would stand upon. She withdrew the allegation that the course of the stream had been changed, and the trial court overruled the motion as to that which then remained in the declaration. That action is the basis of appellant's first contention for reversal, and, in this connection, it is argued that the declaration still contained two separate and independent causes of action in one count, viz., the city's trespass in breaking the large hole in the top of appellee's culvert, and its negligence in failing to keep its own culverts free of obstruction. It is well to bear in mind that our statute only requires that a declaration "contain a statement of the facts constituting the cause of action, in ordinary and concise language, without repetition; and if it contains sufficient matter of substance for the court to proceed upon the merits of the cause, it shall be sufficient." Section 1464, Mississippi Code of 1942. While the entry upon appellee's land and the breaking of a hole in her culvert would give rise to a cause of action for nominal damages and a small amount of actual damages necessary to repair the culvert, which damages were not claimed in the declaration, the gravamen of the complaint is that because of this large hole the water was diverted from the culvert onto appellee's land when the city negligently failed to keep its own culverts free from obstructions. It is at once apparent that if the city kept its culverts open there was no way for water to flow through the top of appellee's culvert and damage her property to the extent shown by the record here, but when the city's culverts became obstructed and prevented the flow of water through them, the water was compelled to escape through the hole and flood appellee's land. (Hn 1) Thus it is seen that the obstruction of the city's culverts increased the damage flowing from the breaking of the hole in appellee's culvert, and the two acts concurrently contributed to appellee's single claim for damages. Since both acts combine to make up one complete result, and since the result could not have been attained without the concurrence of both acts, we are of the opinion that the ruling of the trial court was correct and this is made patent when consideration is given to the fact that appellant's motion was to require appellee to elect one of these acts and discard the other as the basis for her cause of action.

The principal complaint of appellee is that the waters which flooded her place rushed through with such force as to wash the mortar from the brick pillars which supported the house, breaking one of them in two, and ponded underneath the house to the extent that the foundation was caused to sink in places as a result of which the floor sagged out of line so completely that the doors and windows will have to be re-hung and the wall paper replaced after the pillars are rebuilt and the floor brought to a level. (Hn 2) A real estate appraiser for the federal government, familiar with land values in Meridian, was offered as a witness for appellee and testified that he had recently inspected the house and he was asked the question that if the house in 1942 and 1943 was in a fair state of repair, and its floors were not out of line, and the pillars were all right, what would have been its fair market value, and over objection of appellant he replied that it would have been about $5,500.00 to $6,000.00, but that in its present condition it is worth about $2,000.00. The overruling of the city's objection to this testimony is assigned as error. This witness had already testified that the market value of such property in that vicinity was stable from 1942 up to the time of the trial. Since he was familiar with values we do not think that his testimony was improper or that the trial court in overruling the objection thereto committed such error as to require a reversal.

(Hn 3) Appellant next contends that it was entitled to a directed verdict. There was abundant evidence to sustain the allegations of the declaration. The proof for appellee showed that the hole was broken in her culvert by the city authorities about the year 1943, that thereafter the city failed to keep its culverts clear of obstructions, and that as a result thereof the water was caused to boil out of this hole to such extent that the soil was washed away to a depth of six or seven feet over a space large enough to hold an automobile truck, and that this water flowed thence to appellee's dwelling house and undermined it to the extent heretofore stated. Some of this evidence was not seriously denied, and we are of the opinion that the question whether the city's alleged negligence proximately caused or contributed to appellee's damage was one for decision by a jury. Fewell v. City of Meridian, 90 Miss. 380, 43 So. 438, 9 L.R.A., N.S., 775; Cain v. City of Jackson, 169 Miss. 96, 152 So. 295; City of Vicksburg v. Porterfield, 164 Miss. 581, 145 So. 355, and authorities therein cited.

We have carefully considered the other assignments pertaining to the granting of instructions to appellee and the refusal of instructions requested by appellant, and we find no error in these several actions of the trial court. Moreover, we cannot hold upon the record here presented that the verdict is contrary to the great weight of the evidence, and the judgment is accordingly affirmed.

Affirmed.