City of Logansport v. Newby

• Decision Date: 26 March 1912
• Docket Number: 7,492
• Citation: 98 N.E. 4,49 Ind.App. 674
• Parties: CITY OF LOGANSPORT v. NEWBY
• Court: Indiana Appellate Court

98 N.E. 4

49 Ind.App. 674

CITY OF LOGANSPORT v. NEWBY

No. 7,492

Court of Appeals of Indiana

March 26, 1912

From Miami Circuit Court; Joseph N. Tillett, Judge.

Action by John A. Newby against the City of Logansport. From a judgment for plaintiff, defendant appeals.

Affirmed.

George W. Funk, for appellant.

Frank V. Guthrie, Robert J. Loveland, Kistler & Kistler, for appellee.

IBACH P. J. Lairy, J., not participating.

OPINION

IBACH, P. J.

Appellee who is a florist at Logansport, brought this action in the Cass Circuit Court to recover damages, which he avers were sustained by him on account of the negligent construction and maintenance by appellant of a certain sewer in the territory in which appellee's greenhouse is situated, whereby sewer water was caused to flow into his furnace, putting out the fires, and causing many of his plants and flowers to become frozen. Appellant's motion to require appellee to make his complaint more definite, certain and specific, was overruled, as was also a demurrer to the complaint. Answer of general denial was then filed. The cause was tried by the court without a jury. At the request of both parties, the court found the facts specially, and stated its conclusions of law thereon. Judgment in the sum of $ 3,210 was rendered on the conclusions of law in favor of appellee.

The substantial averments of the complaint are that to prevent leakage and diversion of the water and sewage from such sewer, and the pouring thereof on to plaintiff's said premises, it was necessary to construct and maintain said sewer with tight walls and closed-pipe-joint connections, so as to make said sewer practically water tight, all of which defendant well knew, but defendant, by its officers, agents and employes, carelessly and negligently maintained said sewer with insecure, loose, leaky walls and open-joint connections, so that large volumes of water and sewage, when gathered in such sewer, would not be retained, and restrained from passing through the walls out upon plaintiff's said premises, and by reason of such negligent construction and maintenance of said sewer the water and sewage collected therein would and did in large quantities pass out through the walls of said sewer upon plaintiff's said premises; that about the middle of January, 1907, and after a large amount of rain fell, at a time when the temperature was below freezing, and when a large volume of water was collected within said sewer, by reason of the carelessness and negligence of said city in the construction and maintenance of its sewer, as before described, the water and sewage therein collected was in large quantities poured upon plaintiff's said premises and into the boiler and furnace room so as to and did put out the fires in the boiler, causing the plants to become frozen, notwithstanding plaintiff used all reasonable care in trying to prevent injury to his property, and to divert the water from his premises, and to supply other heating devices (Bill of particulars of property so injured, marked exhibit A, is filed herewith and made a part hereof); that by reason of the destruction of his property he is unable to place his products on the market; that he is unable to go upon the market and supply the products destroyed, so as to supply his trade and derive the profits therefrom; that he was further damaged, in supplying labor and devices in trying to save his property, in the sum of $ 325. and that in all he was damaged in the sum of $ 6,500.

The first error assigned is in denying appellant's motion to require the complaint to be made more definite, certain and specific, by setting out opposite each item of property in the bill of particulars the value thereof.

This is an action in tort, in which an itemized bill of particulars will not usually be required. This rule has been announced in a number of cases, and although they are not identical in form with this case, yet they are so closely related in principle as to justify the conclusion that the trial court did not err in overruling the motion under consideration, although it might have been sustained with propriety. Alleman v. Wheeler (1885), 101 Ind. 141, 144; Roberts v. Vornholt (1891), 126 Ind. 511, 512, 26 N.E. 207; Lemmon v. Moore (1884), 94 Ind. 40, 43.

We are also impressed with the thought that no injustice was done appellant, or its rights prejudiced, by the refusal of the court to require appellee to set out the value of each item of property destroyed, for in any event the amount of appellee's recovery could alone be measured and ascertained from the proof introduced at the trial, coming from persons acquainted with the value of such articles.

It is next argued that the complaint is defective because it is not alleged in direct and positive terms that appellee was the owner of the properties damaged. We cannot agree with appellant, for we find that the complaint directly charges "that plaintiff during the month of January, 1907, up to and including the present time, and for many years prior thereto, was the owner of a greenhouse located within said city, wherein he was engaged, as a florist, in growing and raising plants, shrubs, flowers and other floral productions such as are usually grown in a greenhouse, and in gathering and placing the products there produced on the general market." Considering these averments with the remaining portions of the complaint, it is made to appear with sufficient clearness that plaintiff was the owner of the properties described in the complaint, was in possession thereof at the time they were injured, and that he was the real party interested in recovering damages for their destruction. Bliss, Code Pl. (2d ed.) § 23; Indiana Stone Co. v. Stewart (1893), 7 Ind.App. 563, 34 N.E. 1019; Pittsburgh, etc., R. Co. v. Simons (1907), 168 Ind. 333, 340, 79 N.E. 911.

Appellant can only be held responsible to appellee, for such damages as he may have sustained by reason of the sewage and water being turned into his premises, on proof of some fault or negligence upon its part, either in the construction of the sewer or in keeping it in proper condition and repair for the accomplishment of the purposes for which it was constructed. A municipal corporation in the exercise of the functions conferred on it by statute may order the construction of a sewer, and in doing so it acts only in a governmental capacity, for which it cannot be held...