Chamberlain v. City of Des Moines
| Decision Date | 18 November 1915 |
| Docket Number | 30298 |
| Parties | H. S. CHAMBERLAIN, Appellee, v. CITY OF DES MOINES, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. 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, for appellant.
W. H Salisbury, W. L. Smith and James A. Howe, for appellees.
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% 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 Secs. 785, 786, 788 and 789, to have plaintiff's damages assessed before making any alterations in the grade; but proceeded to change the grade under an ordinance or resolution without having the damages assessed, evidently preferring a law suit 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%. See Code Sec. 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 as 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.
I. 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. Chicago, M. & St. P. R. Co., 68 Iowa 530, 23 N.W. 245, 27 N.W. 605; Jacobson v. U.S. 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. The Dubuque & Sioux City R. Co., 33 Iowa 422; Christie v. Iowa Life Ins. Co., 111 Iowa 177, 82 N.W. 499; Black v. Minneapolis & St. L. R. Co., 122 Iowa 32, 96 N.W. 984. In other cases for unliquidated damages, interest has been allowed from the time the damages accrued. Moore v. Fryman, 154 Iowa 534, 134 N.W. 534; Collins v. Gleason Coal Co., 140 Iowa 114, 115 N.W. 497. See also the Black and Jacobson cases, supra.
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 damages assessed and to pay or tender them to the proper owner. Code Sec. 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 interest should be allowed eo nomine. We seem to have no case directly upon the proposition,--although the Moore and Collins cases, supra, are clearly analogous; but authorities from other states, under similar statutes, are in support of our conclusions. Peabody v. New York, N.H. & H. R. Co., (Mass.) 187 Mass. 489, 73 N.E. 649; City of Cincinnati v. Whetstone, (Ohio) 47 Ohio St. 196, 24 N.E. 409; Fell v. Union P. R. Co., (Utah) 28 L.R.A. (N.S.) 1 and cases cited; New Haven Steam Sawmill Co. v. City of New Haven, (Conn.) 72 Conn. 276, 44 A. 609, 44 A. 229; Lough v. Minneapolis & St. L. R. Co., 116 Iowa 31, 89 N.W. 77; Hampton v. Kansas City, 74 Mo.App. 129.
II. It is true that the statute which authorizes recovery of damages for change of grade does not provide that interest may be allowed. But it does provide for payment in advance of the change, thus creating...
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