Timothy J. Foohey Dredging Company v. Mabin

• Decision Date: 29 March 1915
• Docket Number: 276
• Parties: TIMOTHY J. FOOHEY DREDGING COMPANY v. MABIN
• Court: Arkansas Supreme Court

175 S.W. 400

118 Ark. 1

TIMOTHY J. FOOHEY DREDGING COMPANY v. MABIN

No. 276

Supreme Court of Arkansas

March 29, 1915

Appeal from Mississippi Circuit Court, Osceola Distrier; W. J Driver, Judge; affirmed.

Affirmed.

S. L. Gladish, for appellant.

J W. Rhodes, Jr., and W. J. Lamb, for appellee.

OPINION

MCCULLOCH, C. J.

This is an action instituted by appellee to recover damages resulting from alleged negligence of appellant in damming up a drainage ditch so as to cause water to overflow lands rented by appellee for the year 1912, and to prevent the planting and cultivation of crops. There was a drainage ditch known as the Wilson ditch which ran along the boundary of lands in question, but another drainage district was formed to enlarge and extend that ditch, and the commissioners let the contract to appellant to do the work. It is alleged that in doing the work, the Wilson ditch was dammed up and kept in that condition for several months, and that as a result, the lands rented by appellee from Lovell were overflowed. This occurred in June, 1912, and it is claimed that the greater portion of the land was rendered wholly unfit for cultivation, and prevented the planting of crops, and that a certain amount of crops of corn, which had been planted and were being cultivated to maturity, were destroyed. The court submitted the case to the jury upon instructions concerning the measure of damages, which permitted the jury to assess damages based upon the rental value of the lands which could not be planted or cultivated on account of the alleged overflow, and upon the actual value of immature crops which were destroyed by the overflow. The jury returned a verdict in favor of appellee, and assessed the damages in the sum of $ 600.

It is contended that the testimony is not sufficient to sustain the verdict, but we are of the opinion that there is enough testimony to warrant a finding that the damming up of the ditch was not a necessary part of the construction work which appellant had undertaken to do, that it constituted an act of negligence, and that it caused the overflow which damaged appellee in the planting and cultivation of his crops. The law of the case was declared in Wood v. Drainage District, 110 Ark. 416, 161 S.W. 1057, and in the case of Timothy J. Foohey Dredging Company v Lovewell, supra. In the last case we said that "a drainage district, or other public agency of that kind, is not liable for negligence in constructing a contemplated improvement, and that the contractors who do the work are not liable except for negligence or unskillfulness in constructing the improvement." The court gave several instructions, telling the jury that appellant was not liable unless the damming up of the ditch constituted an act of negligence on the part of the appellant, and caused the damage to the crops.

It is true that the court gave two instructions, at the instance of appellee (instructions Nos. 1 and 6), which omitted any reference to negligence in the construction of the ditch, and made the right of appellee to recover depend solely on the damming up of the ditch and the consequent overflow of the land, but appellant failed to make appropriate objections to those instructions. The objections were specific and based on other grounds. The court gave other instructions, at the request of both parties, submitting the question of negligence, and doubtless if the omission of that issue from the two instructions mentioned above had been called to the attention of the court, they would have been cured, but appellant contented itself with specific objections based upon entirely different grounds from that, and thereby waived the defect in the instructions.

Counsel invoke the rule, stated in many of our cases, to the effect that a request for a correct instruction is tantamount to a specific objection to an erroneous one. St. Louis, I. M. & S. Ry. Co. v. Bright, 109 Ark. 4. That rule does not apply, however, where there has been a specific objection upon different grounds, for that is an affirmative act which constitutes a waiver of all other objections. Where a party specifically objects to...