Adams & Sullivan v. Sengel

• Decision Date: 02 November 1917
• Citation: 177 Ky. 535,197 S.W. 974
• Parties: ADAMS & SULLIVAN v. SENGEL. [a1]
• Court: Kentucky Court of Appeals

197 S.W. 974

177 Ky. 535

ADAMS & SULLIVAN v. SENGEL. ^[a1]

Court of Appeals of Kentucky.

November 2, 1917

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by Phillip Sengel against John H. Cahill and others, partners as Adams & Sullivan. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Dallam Farnsley & Means, of Louisville, for appellants.

Kohn Bingham, Sloss & Spindle, of Louisville, for appellee.

HURT J.

In August, 1914, the appellants, John H. Cahill, C. W. Adams and John L. Sullivan, partners, doing business under the firm name of Adams & Sullivan, under a contract with the city of Louisville, for that purpose, undertook to open out and widen the bed of Bear Grass creek at a point within the corporate limits of the city, and where a lot owned by the appellee, Phillip Sengel, adjoined the creek. There were situated upon appellee's lot, in close proximity to the creek, several buildings, two of which appellee was wont to let to rent, and another in which he kept an office, and another was a cooper shop newly built, in which was machinery used in the business of a cooper, and also upon the lot was a considerable quantity of staves to be manufactured into barrels. The appellants, in their operations, did a large amount of blasting, in order to remove the rocks and possibly other obstructions from the stream, and in so doing continued the blasting at intervals, from time to time, for several months. The appellee claims that the blasting was extremely heavy and cast showers of stones, some of considerable weight, and dirt and other débris, upon the ground and buildings and staves. The stones falling upon the roofs of the buildings perforated the roof in many places, and falling upon his staves split and otherwise injured them, while the concussion from the force of the blasting blew in his windows, split the wall of one building, and shook the plaster from the walls and ceiling, thereby tearing the paper from the walls and rooms of the houses and frightened away his tenants, and caused his dwelling houses to be unoccupied for several months. The damages necessitated the repairing of the roofs and buildings generally, and required the services of tinners, carpenters, plasterers, and glaziers. These matters the appellee complained of in a petition, which he filed on the 22d day of April, 1915, and in an amended petition, which he thereafter filed, setting up and seeking damages which he had suffered after the filing of the original petition. In all he claimed damages in the sum of $2,500. The appellants denied all the allegations of the petition and amended petition; and, as a further defense, in a second paragraph of the answer alleged that, while engaged in the opening, widening, and adjusting the creek and its banks, they were engaged, as agents of the city, in performing and carrying out a function of government, and hence are not liable to appellee for any of the alleged damages. The court sustained a general demurrer to the second paragraph of the answer. When a trial was had of the action, the verdict of the jury fixed the appellee's damages at the sum of $1,500, and a judgment was rendered by the court in accordance with the verdict.

The appellant's motion for a new trial being overruled, they have appealed to this court, and insist as errors of the trial court, which were to their substantial prejudice, the giving of the instructions 1, 2, 3, 4, 5, 6, and 7 by the court to the jury, and the sustaining of the demurrer to the second paragraph of the answer, to all of which they objected and saved exceptions.

(a) Touching the action of the court in sustaining the demurrer to the second paragraph of the answer, but little doubt can be entertained of the correctness of the judgment of the court. The cities and other municipalities may construct sewers and other similar improvements, and do so, as an exercise of their governmental functions, but it would scarcely require any citation of authority to establish that the city itself would not have authority, in the construction of a street, sewer, or other improvement, to destroy or injure the property of its citizens, without making just compensation, and one with whom the city contracts to do a public work is certainly not immune from damages for injuring or destroying private property in the prosecution of the work, as he could enjoy no more favored position than the city. Section 242 of the Constitution provides that municipal corporations, which have the right to take private property for public use, may not do so unless they make compensation for the property taken, injured, or destroyed, and the compensation shall be made or secured before the property is injured or destroyed. Pickerill v. City of Louisville, 125 Ky. 213, 100 S.W. 873; City v. Jephson, 53 S.W. 1046, 21 Ky. Law Rep. 1028; City of Henderson v. McClain, 102 Ky. 402, 43 S.W. 700, 19 Ky. Law Rep. 1450, 39 L. R. A. 349; City v. Detweller, 47 S.W. 881, 20 Ky. Law Rep. 894; Ewing v. City, 140 Ky. 726, 131 S.W. 1016, 31 L. R. A. (N. S.) 612; Hay v. City, 114 Ky. 665, 71 S.W. 867, 24 Ky. Law Rep. 1495; City v. Sauter, 149 Ky. 721, 149 S.W. 1029; City of Paducah v. Allen, 111 Ky. 361, 63 S.W. 981, 23 Ky. Law Rep. 701, 98 Am. St. Rep. 422; Clayton v. City of Henderson, 103 Ky. 288, 44 S.W. 667, 20 Ky. Law Rep. 87, 44 L. R. A. 474; Madisonville v. Hardman, 92 S.W. 930, 29 Ky. Law Rep. 253; City of Louisville v. Hehemann, 161 Ky. 523, 171 S.W. 165, L. R. A. 1915C, 747; Board of Park Commissioners v. Prinz, 127 Ky. 460, 105 S.W. 948, 32 Ky. Law Rep. 359; O'Gara v. City of Dayton, 175 Ky. 395, 194 S.W. 380.

The appellee, by the amended petition, specifically alleged the damages which he had incurred, claiming separate amounts for the damages suffered by reason of the injuries from the blasting to his cooper shop and factory; the damages from the blasting and subsequent injuries to the cottages, which he held for renting; to the building used as an office and the shed thereto; and the damages for the injuries to his lumber and staves. The damages claimed in the particular amounts set out in the amended petition were those which had been sustained at the time of the filing of the petition. The amended petition also claimed damages which had been suffered after the filing of the petition, in the same way and for the same character of injuries as alleged in the petition, but the damages to the various pieces of property were not separated, but alleged to be of the gross sum of $500.

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