City of Guthrie v. Nix, Halsell & Co.

• Decision Date: 27 July 1895
• Citation: 3 Okla. 136,1895 OK 24,41 P. 343
• Parties: THE CITY OF GUTHRIE v. NIX, HALSELL & COMPANY.
• Court: Oklahoma Supreme Court

1895 OK 24

41 P. 343

3 Okla. 136

THE CITY OF GUTHRIE v. NIX, HALSELL & COMPANY.

Supreme Court of Oklahoma

Decided: July 27, 1895

Error from the District Court of Logan County.

Syllabus

¶0 1. STATUTES--Indiana Code--Construction. Under the code of civil procedure adopted from the state of Indiana, and in force in this territory under the Statutes of 1890, the rules of interpretation and construction applied to that code by the supreme court of Indiana prior to its adoption here, when recognized by it as settled rules of interpretation and construction, will be applied by this court, and under this ruling a plaintiff seeking damages for negligence must affirmatively allege in his complaint that he did not contribute to the injury complained of, by any negligence of his own.

2. SAME--Pleadings--Questioned for First Time. Under the code of civil procedure adopted from the state of Indiana, and in force in this territory under the Statutes of 1890, if a material averment be omitted from the complaint, the complaint may be questioned for the first time by an assignment of error in the supreme court, upon the ground that it does not state facts sufficient to constitute a cause of action, although the objection may not have been raised by demurrer in the court below.

3. SAME--Defect Cured by Verdict, When. Under the code of civil procedure here interpreted, when an averment material to the cause of action has been imperfectly or defectively stated in the pleadings, but yet so that proof may be admitted under such averment, the defect will be cured by verdict, but the total omission of a material averment will not be cured by verdict.

B. T. Hainer and Morgan, Pancoast & Baker, for plaintiff in error.

Wisby & Hornor, for defendants in error.

MCATEE, J.:

¶1 The petition in this case, filed by the defendants in error, plaintiffs below, alleges that they were carrying on the wholesale grocery business as partners in the city of Guthrie in June, 1892, and prior thereto, in a building, including its basement, on lot 23, in block 49, of that city; that the basement was accessible from above by a stair-way leading from the sidewalk in front of the building, and that the building and sidewalk are on the grade of Oklahoma avenue, as it had been established by that city; that they had at that time a large amount of goods and merchandise of great value stored in the basement; that prior to the bringing to grade of Oklahoma avenue of that city, the land lying adjacent to block 49, on which the building was situated, drained naturally in a southerly direction, by reason of the slope and fall of the ground toward the south; that the rain and surface water which fell and found its way to, in and about the locality of said block 49, found its way by a natural flow into a swale or draw which then intersected said Oklahoma avenue, near where lot 23 is located, and then by way of said swale or draw to the south; that in the year 1891 the city of Guthrie, by its street commissioners and other officers and agents, brought Oklahoma avenue to grade; that in bringing the avenue to grade the swale or draw was filled at the point where the avenue crosses the same to a height of about eight feet, so as to form a dam or obstruction across the swale sufficient to shut off and prevent the natural flow of water down the draw; that in order to provide a way of egress for the water that would accumulate behind said embankment or culvert, a drain was constructed therein, which was entirely inadequate to carry off the water of usual hard rains, and that after such rains, water accumulated behind the embankment, and that there was no adequate means provided for the water to pass off; that in bringing the avenue to grade, the grading was so done as to throw the rain which might fall or might otherwise find its way into said street, into shallow gutters at the sides thereof; that the grading of the avenue was such, at and near said lot 23, as to cause the water for eight blocks on the east and three blocks on the west thereof, to flow by gravitation to a common. point on said avenue; that is, to where the said swale or draw formerly intersected said avenue, the intersection of Oklahoma avenue and Vine street; that by reason of the collection of a large amount of water, and the drainage of a large space of ground, and the inadequate arrangement of culverts and sewers, the water of common and usual hard rains was caused to rise and stand around, over and above the said swale or opening, and to flow and set back therefrom, so that at the time mentioned in the petition and at the time of a usual hard rain, the water rose and flowed back over Oklahoma avenue, so as to flood the street and overflow the sidewalk in front of said lot 23, which sidewalk had been built in a substantial and workmanlike manner upon the grade established by the defendant city, and that the water overflowed the sidewalk, fell and flowed down the stairway aforesaid, and ran thence into the basement of the plaintiffs' premises, and soaked and saturated their goods to the damage of plaintiffs in the sum of one thousand dollars. The petition alleged that the injury and damage was caused by the wrongful and unlawful acts of the city, and by the negligence, carelessness, unskillfulness of the city, its officers and agents, in interfering with the natural condition of the land about the premises described, so as to produce a flow and accumulation of water at the place mentioned, without providing adequate means to carry it off and away.

¶2 The complaint did not contain any averment that the plaintiffs were themselves without fault, or that they did not, by their own act, contribute to the injury. The defendant did not demur to the complaint, but answered by a general denial, and by an averment that, long prior to the time of the acts complained of in plaintiffs' petition, and when the building was constructed, which the plaintiffs occupied as tenants, that it was so negligently and unskillfully constructed, that the whole space of the street in front of the building was used as a sidewalk, without authority from the city of Guthrie, and that the sidewalk had been excavated to the full depth of the basement of the building, which was nine or ten feet below the grade of Oklahoma avenue, and below the surface of the adjoining property, and that it was by reason of this wrongful excavation, in front of the building and under the sidewalk, which caused the water to flow into the basement of the building occupied by the plaintiffs, that the loss complained of was caused, and that the loss complained of in the petition, if any, was not by reason of the negligent and unskillful manner in which the sewer was constructed; that during the time plaintiffs occupied the building they had full knowledge of the excavation, under the sidewalk, in front of the building, and that the excavation and drains were...