Stewart v. City of Clinton

• Decision Date: 31 October 1883
• Citation: 79 Mo. 603
• Parties: STEWART v. THE CITY OF CLINTON, Appellant.
• Court: Missouri Supreme Court

79 Mo. 603

STEWART

v.THE CITY OF CLINTON, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Henry Circuit Court.--HON. F. P. WRIGHT, Judge.

REVERSED.

S. B. Orem for appellant.

M. A. Fyke for respondent.

PHILIPS, C.

The petition in this case alleges in substance that at and prior to 1875 the defendant was a municipal corporation organized under the general laws of the State by the corporate name of “The Inhabitants of the Town of Clinton,” with certain powers, etc.; that in 1878 it reorganized under the law therefor as a city of the fourth class, and took the corporate name of “The City of Clinton.” The petition then avers that on the--day of ____, 1875, “he was the owner of a certain lot in said city of Clinton, upon which was situated his dwelling house, under which was a basement or under-ground story; that at the time he constructed said basement story he also constructed a sewer or drain three feet under-ground, which drain or sewer led from said basement to the public street in front of his said dwelling; that at the time said sewer was constructed said street had been graded by defendant so that the surface thereof was below the sewer leading from plaintiff's basement, so that the water running along said street passed along and off without flowing into plaintiff's drain and thence into plaintiff's basement story; that afterward defendant raised the grade of said street in front of plaintiff's said dwelling three or four feet and constructed a culvert across said street; that defendant, in raising the grade of said street and in constructing said culvert, so negligently, carelessly and unskillfully graded said street and constructed said culvert as to cause the water, or a portion thereof, which had theretofore flowed down said street and away from the same, to flow through plaintiff's drain into plaintiff's basement story; that after defendant had so constructed said culvert it negligently and carelessly suffered the same to become and remain choked and filled up and obstructed for the space of three years, so that all the water, which, but for the negligent acts of defendant, would have passed away from said street and plaintiff's premises, flowed through plaintiff's drain and into his basement, greatly injuring the same, to his damage in the sum of $500.”

Defendant's answer denied generally the allegations of the petition, except it admitted the incorporation of defendant, but denied that “as such corporation it had any powers save such as were conferred by the general laws, and had no power to grade and improve its streets except by an ordinance duly passed and adopted by the board of aldermen, or that any agent, servant or employe of said town or corporation had any power to bind said town by any attempt to grade any street therein in the absence of an ordinance authorizing the same; averred that said town had never by its board of trustees passed any ordinance fixing a grade for said street in front of plaintiff's residence, or that it ever erected, constructed, or caused to be constructed, any sewer, as described in plaintiff's petition, under and across said street, and that if any person assumed to build or construct said sewer or grade said street by authority of said town it was wholly unauthorized by said town or its board of trustees, and defendant was not liable for injury or damage resulting therefrom; and further, that whatever damage plaintiff suffered by reason of said sewer being obstructed was caused by plaintiff's own carelessness in permitting the same, when it was in his own knowledge and power to prevent the same at a small cost, and the damages resulting from such obstruction were allowed to accumulate, without any effort on his part to protect himself.”

The reply denied the allegation of the answer touching the passage of said ordinance, and then averred that with or without an ordinance the town was hable.

The defendant objected to the introduction of any evidence under the petition because it did not state facts sufficient to constitute a cause of action, and because it did not show that the grading and work in question were authorized by any ordinance of the town trustees. The court admitted the evidence. The evidence in the case wholly failed to show that the said street had ever been graded by authority of the town officials prior to the time of the alleged change of the grade. Nor did the plaintiff introduce any evidence that the work in question was done pursuant to any ordinance passed by the trustees; while the defendant's evidence quite clearly established that no such ordinance had ever been adopted, or any resolution of the board of trustees directing the work to be done on the street.

The plaintiff's evidence tended to prove that the change made in the street in 1875 so elevated the street that it interfered with the escape of the water from the pipe which conducted the water from his cellar or basement room, as alleged in the petition; and that the culvert constructed by whoever did the work on the street was not large enough to carry off the volume of water on occasions of freshets or unusual accumulations of surface water, the consequence of which was that the water which did not find vent through this culvert ran into plaintiff's conduit pipes, and thence into his cellar, rendering it uninhabitable and perhaps unwholesome. His testimony tended also to show that the culvert at times became stopped up, which would cause the reflux of the water into his pipes. Defendant's testimony, after showing that there was no ordinance or resolution ever passed or adopted by the board of trustees directing the work in question to be done, tended to prove that the grading of the street was properly executed, that it was a needful public improvement, and that the culvert was properly constructed and adequate for the passage of the water-flow through it. The evidence all tended to show that the water in question was from surface flow.

On behalf of plaintiff the court gave the following instruction: “If the jury believe from the evidence that plaintiff, about the time alleged in the petition, was the owner of the lot described in the petition, and that the said defendant, by its trustees, graded the street in front of plaintiff's lot and made a culvert across said street in front of said lot where there had been a pass-way for water across said street, and that at the time said work was done plaintiff had a drain from his basement to said street sufficient to drain said basement, and that defendant negligently constructed said culvert, and that said culvert became choked up and defendant was notified thereof and afterward negligently permitted the same to remain obstructed, and that by reason thereof the water was backed from said street through plaintiff's drain into his basement, without negligence on his part, and his basement was damaged thereby, you will find for plaintiff, and assess his damage at such sum as you may believe from the evidence he has sustained as the immediate and necessary consequence of said negligence, not exceeding $500, and in estimating the damages you should take into consideration all the facts and circumstances detailed in the evidence.”

The defendant asked a number of instructions. The first asserted the proposition, in substance, that unless the work or change in the grade of the street and the culvert were authorized by an ordinance adopted by the board of trustees, and the work was unskillfully and negligently done, the plaintiff could not recover.

The second asserted that if the injury sustained by the plaintiff was caused by the flow of surface water alone, he could not recover.

The third declared that plaintiff could recover only for damages caused by the negligent execution of the work and the negligently allowing the culvert to become stopped, and that plaintiff is not entitled to recover for the loss of rents which he might have prevented by repairing the house.

The fourth declared that unless there was an ordinance of the board establishing the grade in the first instance, and then an ordinance directing the change of the grade so established, then the work done by the parties, whoever they were, could not be charged against the defendant.

The fifth told the jury that if the plaintiff could, at trifling expense and by reasonable exertion, have prevented the injury, he could not recover.

The court refused all these declarations, and then, of its own motion, gave the following:

1. If the jury believe from the evidence that plaintiff could have prevented his basement from being damaged on account of a defect in the culvert leading from his drain across the street in front of his dwelling house at a trifling expense and by reasonable exertions, he cannot recover in this suit, and you will find for the defendant, provided the damage sustained, if any, was occasioned by his own negligence and not by the negligence of defendant.

2. Though the jury should find for the plaintiff, in estimating the damage they will only assess such as they find from the evidence was the immediate and natural consequence of the negligence of the defendant, its agents or employes.

The jury found the issues for the plaintiff, and assessed his damage at $150. Defendant brings the case here by appeal.

1. MUNICIPAL CORPORATION: execution of corporate powers: pleading

The objection to the introduction of any evidence under the petition was properly overruled. The averment is, substantially, that the first grade of the street in question was established “by defendant.” and that the change in the grade and culvert were made “by defendant.” This carried with it the implication that the work was ordered by the representative board of the corporation and in the manner provided by law; otherwise it could not have been done by defendant. “Things which are necessarily implied need not be alleged.” Bliss Code Plead., § 175. The case of Werth v. City of...