City of Jackson v. Cook, 38354

• Citation: 58 So.2d 498,214 Miss. 201
• Decision Date: 05 May 1952
• Docket Number: No. 38354,38354
• Parties: CITY OF JACKSON v. COOK et al.
• Court: United States State Supreme Court of Mississippi

Page 498

58 So.2d 498

214 Miss. 201

CITY OF JACKSON v. COOK et al.

No. 38354.

Supreme Court of Mississippi.

May 5, 1952.

Satterfield, Ewing, Williams & Shell and E. W. Stennett, all of Jackson, for appellant.

Pyles & Tucker, Jackson, for appellees.

ROBERDS, Presiding Justice.

Appellees, as plaintiffs, sued the City of Jackson, as defendant, for damages to a lot, and the improvements thereon, resulting from the flooding thereof by the City in draining water from Glendale Street. From a verdict and judgment for plaintiffs in the sum of $1,875 the defendant-City appeals.

The declaration, in one count, alleged the City, by such flooding, damaged the property of plaintiffs for public use, and was liable for the damage under Section 17 of the Constitution of Mississippi, and also that such damage was the result of negligence on the part of the City. The City made a motion to require plaintiffs to elect upon which ground of action they would rely. The lower court overruled the motion. Appellant says that was reversible error. It relies upon Illinois Cent. Ry. Co. v. Abrams, 84 Miss. 456, 36 So. 542; Thompson v. City of Philadelphia, 180 Miss. 190, 177 So. 39, and City of Meridian v. Peavy, 188 Miss. 168, 194 So. 595.

In the Abrams case the declaration, in one count, grounded the action upon an unsafe place to work and negligence of a fellow servant. The Court also remarked that the allegations were vague and indefinite. As to the two stated grounds the court said they constituted 'antagonistic causes of action under this peculiar declaration', [84 Miss. 456, 36 So. 543] and indicated the grounds should have been stated in two counts instead of one. However, no motion to elect was involved in that case.

In the Thompson case plaintiff sought damage for 'improper' disposal of sewage over his land--in other words, the declaration charged negligence. The City obtained an instruction that no verdict could be returned against it unless the jury believed the damage was the result of negligence. This Court held that was error, saying if plaintiff suffered special damage for public use the jury should return a verdict for plaintiff whether such damage was the result of negligence or not. Motion to elect was not involved.

In the Peavy case the declaration alleged damage resulting from negligent construction of a culvert by the city. The Court granted plaintiff an instruction telling the jury it should find for plaintiff unless it believed the damage was the result of an unprecedented flood--in other words, an act of God. This took from the jury the question of negligence, the evidence as to which was in conflict, and was reversible error. No motion to elect was involved. We do not think these cases sustain the contention of appellant.

On the other hand, Section 1464, Miss.Code 1942, requires only that 'The declaration shall contain a statement of the facts constituting the cause of action, in ordinary and concise language, without repetition; and if it contains sufficient matter of substance for the court to proceed upon the merits of the cause, it shall be sufficient; and it shall not be an objection to maintaining any action that the form thereof should have been different.' Section 17 requires payment for damage to private property taken for public use whether such damage be the result of negligence or not. '* * * liability does not depend on improper construction and maintenance', and if the action be grounded in negligence recovery can be had if there be damage without negligence. Thompson v. City, supra [180 Miss. 190, 177 So. 40]. The two grounds are not antagonistic, or even inconsistent. The negligence charge is simply an enlargement of the charge of damage without negligence. Negligent damage is more comprehensive than damage without negligence. The main object of a declaration is to inform defendant the charges he must meet. That was done here. It alleged plaintiffs owned and occupied as a home a lot and residence thereon facing south on Idlewild Street; that the block to the north thereof is located Glendale Street; these streets run east and west and parallel each other; that in 1948 the City paved Glendale Street, which theretofore was covered with gravel; that this change greatly accelerated the water on that street; that the City also placed curbs and gutters therein; that, to take the water from the street, it installed a storm sewer 24 inches in diameter, running from said street south some 135 feet across private property, at which point it discharged the water upon surface ground, where there was no outlet therefor, some fifty feet northeast of said property of plaintiffs, thereby causing great quantities of water to flow upon and across the residence property of appellees, inflicting upon them much damage. These are the acts alleged in both charges--in the one under Section 17 of the Constitution, they are not designated as negligence (although, if proved, they would show negligence), while in the other it is alleged they constitute negligence. The proof of both parties was directed to these charges. We think the recent case of City of Meridian v. Sullivan, 209 Miss. 61, 45 So.2d 851, settles the question against the contention of appellant. There the declaration charged that the City had (1) broken a large hole in the top of plaintiff's culvert and also had (2) failed to keep its own culverts free of obstructions, and had (3) changed the course of a natural drain which crossed plaintiff's property, thereby flooding her property, causing her large damage. Defendant moved the court to require plaintiff to elect upon which of said three grounds she would rely for recovery, or dismiss her action. The motion was refused, and this Court held that action was not error. It may be in the case at bar defendant was entitled to have the ground of action set out in two counts, but that question is not before us, and we express no opinion upon it.

Appellant next says it was entitled to a peremptory instruction. This was requested and refused. It is first urged, in support of the motion, that the proof failed to establish certain facts essential to liability. One was whether or not the pipe emptied its water into a natural drain. The City contends it did do that. Plaintiffs say it did not. On that question it is not disputed the storm sewer did not empty into any other sewer or pipe; it ended and emptied its water on the ground a short distance northeast of the lot of appellees. The testimony of some of the witnesses for the City tended to show that the pipe emptied its water into a ditch, but it is rather vague as to whether the ditch was large enough to carry the water, or whether the ditch was there at the beginning or was made by water coming through the sewer. Mr. and Mrs. Cook and Mrs. Shands, who resided on a lot near that of the Cooks, testified positively that when the storm pipe was installed there was no ditch; that it did not empty into any ditch whatever; that it emptied onto level ground. That was a question of fact for the jury. Appellant says plaintiffs failed to show that the installed pipe caused any additional water to flow over the property of plaintiffs. It argues that the terrain on all sides of the Cook property is higher than that property, and that before installation of the storm sewer water flowed across that lot. We think the testimony does establish that the surrounding property was higher than the Cook lot. However, Cook and his wife and others testified that before installation of the pipe in 1948 some water came across the Cook lot in a 'diffused' state, but after such installation 'torrents' of water came across the lot directly from the mouth of the storm sewer. For instance, Mr. Cook testified 'I had no trouble at all until the pipe was put in and left open * * *. After they installed this pipe up there I got torrents of water'. Indeed, there are pictures before us showing the water coming across the Cook lot in great volume. Cook's witnesses say it came from the pipe. In this connection, it is shown that some of the adjoining property owners filled in their lots, and the City argues that...