City of Evansville v. Rieber

Decision Date30 January 1979
Docket NumberNo. 1-878A218,1-878A218
PartiesThe CITY OF EVANSVILLE, Deig Brothers Lumber & Construction Company, Inc., Defendants-Appellants, v. William E. RIEBER and Christa Rieber, Plaintiffs-Appellees.
CourtIndiana Appellate Court
Department of Law, City of Evansville by John C. Cox and Barbara B. Williams, Evansville, for defendants-appellants

Robert S. Matthews, Matthews & Shaw, Evansville, for plaintiffs-appellees.

LOWDERMILK, Judge.

STATEMENT OF THE CASE

Defendant-appellant City of Evansville (City) appeals after a jury awarded plaintiffs-appellees William E. Rieber and Christa Rieber (the Riebers) $15,000 for damage suffered by the Riebers when water collected on their real estate after City designed and authorized construction of certain curbs, gutters, street gradings, and storm sewers.

FACTS

City designed certain curbs, gutters, street gradings, and storm sewers. Deig Brothers Lumber & Construction Company, Inc. (Deig Brothers) performed construction work. The Riebers filed their complaint April 23, 1974. They alleged in Count I that, as a result of negligent design and construction of the curbs, gutters, street gradings, and storm sewers, surface water collected on their real estate and caused damage to the Riebers' home. In Count II the Riebers alleged that the construction of the curbs, gutters, street gradings, and storm sewers caused large volumes of surface water to collect on the Riebers' real estate and resulted in a nuisance.

Trial commenced March 15, 1978. The jury returned a verdict in favor of the Riebers and awarded damages in the amount of $15,000. Deig Brothers previously had paid $1,000 to the Riebers in return for a covenant not to sue. Accordingly, the $1,000 paid by Deig Brothers was credited against the $15,000 award.

ISSUES

1. Did the Riebers give City proper notice of their claim?

2. Did the trial court err when it admitted testimony from an expert witness whom the Riebers failed to include in their list of witnesses?

3. Was certain evidence of damages admitted erroneously?

4. Did the trial court err in refusing certain instructions and in giving certain instructions?

5. Is the award of $15,000 supported by sufficient evidence?

Issue One

City insists that the Riebers failed to give City notice of their claim for damage which occurred June 30, 1973, as required by IC 1971, 18-2-2-1 (Burns Code Ed., Supp.1973). 1

On April 20, 1973, a portion of the front foundation wall of the Riebers' home collapsed. City received a Notice of Claim on June 19, 1973.

Although the Riebers had made repairs to the foundation of their home after April 20, 1973, two thirds of the same basement wall collapsed on June 30, 1973, during a rainstorm. William Rieber wrote to the mayor on July 9, 1973:

"This is to inform you, Mayor Lloyd,

of the complete neglect of the drainage problem on Rheinlander Avenue by the City Engineers. Approximately two and one-half years ago, the people in my neighborhood asked for new streets. The reply was that we first must put in curbs and gutters, which we did; and, subsequently, received new streets. Shortly after that, I began reporting the inadequate drainage to the Engineers. During the elapsed period of time, I have made at least five personal calls and fifteen phone calls to get the problem corrected.

According to the City Engineers, 7 acres drain into the drain next to my home. This drain was acquired by my next door neighbor signing an easement to the city. It has been two years since the pipe started separating, taking less and less drainage. All of the overflow comes into my yard, as well as the backup coming over the curbs into my yard. The final result has been the collapse of my front basement wall. I have had to evacuate my home and move all my furniture.

Repairing my home would be futile as long as the drainage problems remain. I was assured many times that the problem would be taken care of as soon as funds allow. I can no longer wait for this procrastinating operation. I am homeless and need immediate action. My home is at 806 Rheinlander.

Your prompt attention will be greatly appreciated.

I am presently residing with my sister at 3031 W. Indiana Phone: 422-6778 or may be reached at my office 464-2461."

City insists that the damage which occurred June 30, 1973, necessitated the filing of an additional Notice of Claim, but City provides no argument and cites no authority in support of its proposition.

The June 19, 1973, notice unmistakably informed City of the Riebers' claim against City for damage caused by the drainage situation. City states in its brief that "Mr. Rieber's Notice of Claim dated June 19th as to the April 20th occurrence complied in every respect with the statute."

Any subsequent Notice of Claim could only have informed City that damage to the Riebers' property was continuing due to the same drainage problem described in the Notice of Claim filed June 19, 1973. In fact, William Rieber clearly did inform the mayor in the letter dated July 9, 1973, that the drainage problem persisted and that his property was continuing to suffer damage.

City quotes from the opinion of Chief Justice Givan in Geyer v. City of Logansport, (1977) Ind., 370 N.E.2d 333, 336:

"The purpose of the notice statute is to inform city officials with reasonable certainty of the accident and surrounding circumstances so that the city may investigate, determine its possible liability and prepare a defense to the claim. . . . "

We would quote from Justice Hunter's opinion in Galbreath v. City of Indianapolis, (1970) 253 Ind. 472, 479-80, 255 N.E.2d 225, 229:

" . . . The purpose of the notice statute being to advise the city of the accident so that it may promptly investigate the surrounding circumstances, we see no need to endorse a policy which renders the statute a trap for the unwary Where such purpose has in fact been satisfied. . . . " (Original emphasis)

In Geyer, supra, our Supreme Court reaffirmed the reasoning expressed in Galbreath, supra, when Chief Justice Givan wrote at page 336 of 370 N.E.2d:

"The question of substantial compliance with this statutory provision was addressed in Galbreath v. City of Indianapolis (1970), 253 Ind. 472, 255 N.E.2d 225. . . . This Court held that because plaintiff's husband had in good faith attempted to fully apprise the city of the accident and surrounding circumstances and because the purpose of the notice statute is to advise the city so that it may investigate the occurrence, that statute had in fact been satisfied. This constituted substantial compliance with the statute. See also Aaron v. City of Tipton (1941), 218 Ind. 227, 32 N.E.2d 88; City of Gary v. Russell (1953), 123 Ind.App. 609, 112 N.E.2d 872; Volk v. City of Michigan City (1941), 109 Ind.App. 70, 32 N.E.2d 724.

It is to be noted that in each of the foregoing cases The plaintiff attempted to render notice to the city and the city possessed a writing of some kind from the plaintiff evidencing the nature of the claim. . . . " (Our emphasis)

In the case at bar, City had the Notice of Claim filed June 19, 1973. Additionally, City had a letter written to the mayor July 9, 1973, by William Rieber and another letter written to the mayor August 7, 1973, by William Rieber in which Rieber referred to enclosed copies of letters he had written to City's engineer and to a member of City's Board of Public Works. The Riebers did inform City of the nature of their claim. The Riebers, in fact, practically begged City to investigate the drainage problem and all circumstances surrounding the damage that the Riebers suffered. If City did not investigate after having received notice, City's lack of diligence cannot bar the Riebers' claim.

We hold that the Riebers satisfied their statutory duty to give notice of their claim to City.

Issue Two

City argues that the trial court erred when it permitted Leo Weiss to testify; the Riebers allegedly had failed to include Mr. Weiss' name on their list of witnesses provided in May of 1976. 2

Failure to move for a continuance generally constitutes waiver of objection. Hirsch v. Merchants National Bank & Trust Co. of Ind., (1975) Ind.App., 336 N.E.2d 833. City made no request for a continuance on March 16, 1978. City only argued that Mr. Weiss should not be permitted to testify. City waived its objection.

Furthermore, the matter of imposing sanctions is within the sound discretion of the trial court. Hirsch v. Merchants National Bank & Trust Co. of Ind., supra. The trial court delayed Mr. Weiss' appearance as a witness so that City would have an opportunity to interview him. 3 We find no abuse of discretion.

Finally, City vigorously cross-examined Leo Weiss and offered expert witnesses of its own to refute Weiss' testimony. City has failed to show prejudice.

Issue Three

The Riebers had voluntarily informed City on November 12, 1976, that costs of repair work at that time totalled $7,986.40. City insists that the Riebers should not have been permitted to introduce evidence of any damages other than those totalling $7,986.40.

The fact that the Riebers voluntarily informed City of certain damages did not prevent the Riebers from presenting evidence of other damages. City had available to it all of the tools of discovery provided by our trial rules. The Riebers cannot be penalized for City's decision to forego discovery efforts.

City also argues that the trial court erred in admitting evidence concerning damages attributable to the collapse of the wall on June 30, and contends that City did not have proper notice of the claim. This argument was answered in Issue One.

Issues Four and Five

City insists that the trial court erred when it gave an instruction concerning liability in a nuisance action. City made the following objection at trial:

"The defendant objects . . . for the reason that a municipal corporation is not liable in nuisance for damages caused by surface...

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