Chamberlain v. City of Des Moines
| Decision Date | 18 November 1915 |
| Docket Number | No. 30298.,30298. |
| Citation | 172 Iowa 500,154 N.W. 766 |
| Parties | CHAMBERLAIN v. CITY OF DES MOINES ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; C. A. Dudley, Judge.
Action at law to recover damages of the City of Des Moines for changing the grade of a street in front of plaintiff's property. Verdict and judgment for the plaintiff, and defendant City appeals. Affirmed.H. W. Byers, Eskil C. Carlson, and Earl M. Steer, all of Des Moines, for appellant.
W. H. Salisbury, of Osage, and W. L. Smith and James A. Howe, both of Des Moines, for appellee.
The sole question involved on this appeal is the right of plaintiff, whose property was damaged by a change in the grade of a street, to recover interest on the amount of damages allowed.
In the first draft of its instructions the trial court prepared one allowing the jury to assess interest on the amount found as damages to the property from the time the actual change of grade was made down to the time of verdict. On objections of the attorneys for the city this instruction was not given, and the jury was directed to allow plaintiff simply the difference in the value of the property immediately before and immediately after the grade was changed. The verdict was for $3,750. Upon return of the verdict, and before judgment was entered, plaintiff moved the court to allow interest on said verdict at 6 per cent. from October 1, 1911, when the change of grade was made, down to the time the verdict was returned, amounting to $525. The motion was sustained, and interest was added to the verdict, and judgment entered accordingly. From the ruling allowing interest, the city appeals.
It will be noticed that the city did not proceed under the statutes (Code, §§ 785, 786, 788, 789) to have plaintiff's damages assessed beforemaking any alteration in the grade, but proceeded to change the grade under an ordinance or resolution without having damages assessed, evidently preferring a lawsuit after the damage was done to putting up the money in advance. The damage to plaintiff's property accrued not later than October 1, 1911, and the amount thereof was then due the plaintiff. Since that time the defendant has had all the advantage of the change of grade, and also held that amount of money in its own possession down to the day of trial, although plaintiff was at all times after the damage accrued entitled to receive the same. Ordinarily interest is allowed eo nomine on all amounts due from one to another at the rate of 6 per cent. See Code, § 3038. But appellant argues: (1) That interest is not allowable as such on unliquidated damages until the amount due is ascertained; (2) that, as the statute fixes the damages which may be recovered for change of grade, there being no liability in the absence of statute, and this statute says nothing about interest, no interest can be allowed; (3) that interest was presumptively allowed by the jury, and cannot be assessed a second time; (4) that the trial court had no power to allow interest on the verdict in any event.
[1] At common law the general rule, no doubt, is that interest should not be allowed on unliquidated damages until the amount of the damage is ascertained, because before that date the amount of the award is uncertain and unfixed. Brentner v. Railroad Co., 68 Iowa, 530, 23 N. W. 245, 27 N. W. 605;Jacobson v. Gypsum Co., 150 Iowa, 330, 130 N. W. 122. But many exceptions have been made to this rule, and interest has been authorized in such cases as a part of the damages in such sum, not exceeding the legal rate, as the jury may think will make the plaintiff whole. Richmond v. Dubuque & Sioux City R. R. Co., 33 Iowa, 422-502;Christie v. Iowa Life Ins. Co., 111 Iowa, 177, 82 N. W. 499;Black v. Railroad Co., 122 Iowa, 32, 96 N. W. 984. In other cases for unliquidated damages interest has been allowed from the time the damage accrued. Moore v. Fryman, 154 Iowa, 534, 134 N. W. 534;Collins v. Coal Co., 140 Iowa, 114, 115 N. W. 497, 118 N. W. 36, 18 L. R. A. (N. S.) 736. See, also, the Black and Jacobson Cases, supra.
[2] Much depends upon the nature of the liability and upon the defendant's duty in the premises. Here the statutes made it the duty of defendant, before commencing the work of changing the grade, to have the damage assessed and to pay or tender them to the property owner. Code, § 785. Had this been done, plaintiff would have had his money, which was his due before the damages were done. He did not get it, because the city failed and neglected to follow the statutes. As a result, the city has not only had the benefit of the change of grade, but also the use of the money which it should have paid to the plaintiff before it commenced the work. In such circumstances, we think that interest should be allowed eo nomine. We seem to have no case directly upon the proposition, although the Moore and Collins Cases,...
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