City of Fort Wayne v. Capehart-Farnsworth Corp.

• Decision Date: 15 May 1957
• Docket Number: CAPEHART-FARNSWORTH,No. 18740,18740
• Citation: 142 N.E.2d 442,127 Ind.App. 412
• Parties: CITY OF FORT WAYNE, Indiana, Appellant, v.CORPORATION, Lester W. Dailey, d/b/a L. W. Dailey Construction Company, Appellees.
• Court: Indiana Appellate Court

Page 442

142 N.E.2d 442

127 Ind.App. 412

CITY OF FORT WAYNE, Indiana, Appellant, v. CAPEHART-FARNSWORTH CORPORATION, Lester W. Dailey, d/b/a L.

W. Dailey Construction Company, Appellees.

No. 18740.

Appellate Court of Indiana, In Banc.

May 15, 1957.

Thomas A. Gallmeyer, Fort Wayne, for appellant.

Campbell, Livingston, Teeple & Dildine, Thomas W. Yoder and Alexander Campbell, Fort Wayne, for appellee Capehart-Farnsworth Corp.

Hunt, Longfellow & Suedhoff, Fort Wayne, H. C. Springer, Butler, for appellee Lester W. Dailey etc.

KELLEY, Presiding Judge.

Appellee, Capehart-Farnsworth Corporation, instituted action by complaint against appellant and the appellee, Lester W. Dailey, for damages allegedly suffered by said corporation by reason of the alleged negligence of appellant and said individual appellee in connecting a storm sewer line into the private sanitary sewer of said corporation thereby flooding the latter's basement and damaging and destroying certain items of personal property located therein. The issues raised by appropriate answer were submitted to the court which found the facts specially and entered three conclusions of law thereon favorable to said corporate appellee and said individual appellee, Lester W. Dailey. Consistent judgment followed and this appeal is taken therefrom, consequent upon the overruling of appellant's motion for a new trial. The only assignment of error is that the court erred in overruling the motion for a new trial.

In addition to the specifications that the decision and finding of the court is not sustained by sufficient evidence and that the same is contrary to law, appellant's motion for a new trial contains twenty specifications of error. Of these, only six are referred to in the argument portion of appellant's brief and, therefore, pursuant to the general holding in that behalf, all the remaining specifications are considered waived. The conclusions of law, as entered by the court, are unchallenged.

No cause for reversal as to the appellee, Lester W. Dailey, is shown or contended for by appellant. We will, therefore, hereinafter use the word 'appellee' as applying to the Capehart-Farnsworth Corporation, and the appellee, Lester W. Dailey, will be referred to as 'Dailey'.

Appellant groups specifications numbered 7, 9(a), and 10 as presenting its contention that the appellee failed to properly prove its alleged damages; and specifications 8, 14 and 18 are grouped as presenting its contention that the appellee was guilty of contributory negligence as a matter of law.

The twenty-two findings entered by the court disclose, in substance, the following facts: Appellee, Capehart-Farnsworth Corporation, owns and operates a plant located on East Pontiac Street in Fort Wayne, Indiana, and therein manufactures, assembles, and stores radio and television sets and equipment and parts therefor. In 1946 said appellee constructed a new office building, containing a storage basement, wherein a sanitary toilet was constructed, and in said construction said appellee constructed an eight-inch sanitary sewer connecting with said toilet and extending northward beneath and across Pontiac Street and thence northward approximately 500 feet where it emptied into one of appellant's combined sanitary and storm sewers, the primary purpose of appellee's said sanitary sewer being to provide an outlet for said toilet and other sanitary drains in appellee's building. As a part of said sanitary sewer said appellee constructed 'a manhole in the parkway along the south side of Pontiac Street'.

In finding No. 6, the court found that in the construction of said sanitary sewer and said manhole, appellee

'did not obtain a formal written permit, required by an ordinance of the City of Fort Wayne, Indiana, but said sanitary sewer and manhole were constructed with the full knowledge, approval and with the active cooperation and subject to the inspection of the proper officials of the City of Fort Wayne'.

Said sanitary sewer was properly constructed and worked satisfactorily and said basement and toilet were used without flooding from 1946 until after October, 1950, when appellant constructed a twelve-inch storm sewer from a catch basin in Pontiac Street and connected the same into appellee's said manhole, so that said storm sewer emptied into said manhole. About September 14, 1950, appellant contracted with appellee, Lester W. Dailey, a contractor engaged in the construction and repair of roads and highways, for the improvement, surfacing and draining of said East Pontiac Street at a point north of said appellee's plant and running east and west therefrom in accordance with plans and specifications prepared by appellant, which provided for a catch basin on the south side of Pontiac Street and which was to be connected with a manhole on the north side of said street.

In the course of the construction under said plans and specifications, appellee, Dailey, discovered the said manhole constructed by the corporation appellee in 1946 and thereupon notified the appellant thereof. The latter, without the knowledge or consent of said corporation appellee, amended said plans and specifications, through its Engineering Department, to provide that said catch basin be connected with appellee's said manhole and directed appellee, Dailey, to make such connection, which the latter did without the knowledge or consent of the corporate appellee. Appellee had no knowledge of said connection to its said manhole until the basement was flooded on December 2, 1950.

Neither appellant nor appellee, Dailey, at the time of the connection of said catch basin with said manhole, knew that the corporate appellee's sanitary sewer connected with and ran through said manhole and that the manhole was a part of the sanitary sewer, and made no effort to ascertain the purpose or function of said manhole before such connection was made, although the function of the manhole would have been apparent on a casual investigation. The said plans and specifications furnished by appellant to appellee, Dailey, did not show that said manhole was a part of said sanitary sewer.

It was the custom and habit of appellant to make changes and alterations in the plans and specifications for street improvements through its Engineering Department. Upon completion of the work by Dailey, appellant accepted the work done, paid for the same, and certified that the work had been done according to the plans and specifications. Said changes in the plans and specifications decreased the cost of the construction of said street improvement. At the time appellee, Dailey, connected said catch basin with said manhole, he had no knowledge that the manhole had been installed by said corporation appellee or that the manhole was not a part of the appellant's sewer system.

On December 2, 1950, much rain fell in Fort Wayne (the findings give the inches of rainfall at various times of the day), and the Maumee River in said city reached flood stage at 12:01 a. m., December 3, 1950. Prior to December 2, 1950, seven inches of snow had accumulated on the ground in said city and, by reason of the rainfall and higher temperature, said snow had melted and ran off, leaving only a trace thereof on December 3, 1950.

As a direct result of the construction and emptying of said 12-inch storm sewer from said catch basin into said corporate appellee's manhole, appellee's sanitary sewer was overtaxed, the manhole became filled with water to a depth between 6 and 8 feet, and the water and sewage backed up into said appellee's basement through said toilet. Said water containing sewage stood in said basement from a depth of 16 inches in the toilet room to a fraction of an inch in more remote areas of the basement and thereby a large amount of stored merchandise in cardboard cartons became soaked and contaminated with sewage water, causing many of said cartons to collapse and causing others stacked above to fall into the sewage water. As a result of the flooding of said basement, a large amount of stored merchandise and equipment were damaged in the aggregate sum of $4,327.01 and said corporate appellee was forced to expend $442.68 to clean the sewage and debris from the basement.

Promptly after the flooding of said basement, appellant caused said 12-inch storm sewer, so emptying into said manhole, to be bricked up and closed, and later removed the catch basin into which said storm tile was connected. Since the closing of said storm tile, said sanitary sewer and basement of said corporate appellee has not been flooded.

Appellant says that the court by said finding No. 6 found that the corporation appellee constructed its sewer and manhole and had it enter the sewer system of appellant without securing a permit and that such 'conduct' was contributory negligence as a matter of law which 'proximately caused' said appellee's damage. However, said finding also found that appellee constructed its sanitary sewer and manhole 'with the full knowledge, approval and with the active cooperation and subject to the inspection of the proper officials' of appellant. Said finding No. 6 of the court stands unimpeached by appellant. It is not argued that said finding is not sustained by the evidence. Thus it seems apparent, from the unchallenged finding of the court, that appellant gave its approval to and actively cooperated in the construction by said appellee in 1946 of its said sanitary sewer and manhole. Appellant favors us with no discussion or citation of authority on the question of the legal effect, if any, of its approval and active cooperation in the construction of appellee's sewer and manhole, that is, whether such action and activity by it did or did not amount to a consent or permission for the construction and connection of appellee's private sanitary system with appellant's combined system, or did or did not constitute a waiver of the written permit requirement (see McQuillin...