City of Meridian v. Peavy

• Decision Date: 18 March 1940
• Docket Number: 34087
• Court: Mississippi Supreme Court
• Parties: CITY OF MERIDIAN v. PEAVY

194 So. 595

188 Miss. 168

CITY OF MERIDIAN v. PEAVY

No. 34087

Supreme Court of Mississippi, Division B

March 18, 1940

Suggestion Of Error Overruled April 15, 1940.

APPEAL from the circuit court of Lauderdale county HON. ARTHUR G BUSBY, Judge.

Suit by L. J. Peavy against the City of Meridian for damages allegedly caused by negligent construction and maintenance of culvert. From a judgment on a verdict for plaintiff, the defendant appeals. Reversed and remanded.

Reversed and remanded.

Howard Westbrook, of Meridian, for appellant.

The instructions granted in this case to the appellee are not sound as law and in hopeless conflict with those granted the appellant.

City of Vicksburg v. Porterfield, 164 Miss. 581, 145 So 345; Cain v. City of Jackson, 169 Miss. 96, 152 So. 295.

The court granted the following instruction to the plaintiff and appellee: "The court instructs the jury to find for the plaintiff unless you believe from a preponderance of the evidence that the plaintiff's damage, if any, was caused solely by an unprecedented rainfall, that is to say, one that could not have been reasonably anticipated.

The foregoing instruction it nothing more or less than a peremptory to find for the plaintiff, and eliminates entirely the question of negligence of the city as contributing to any alleged injury and damage.

The appellant's instruction undertook to announce the theory of liability, which this court has previously adhered to, and that is that the obligation is on the city to exercise reasonable and ordinary care in the maintenance of its drains so as to provide adequate facilities.

Moreover there is no testimony in this record by which the instructions granted to the appellee could be justified.

Certainly, it cannot be reasonably argued that any overflow on the property of this appellee or any citizen is negligence per se. The measure of liability in the first instance is negligence in this type of case and the decisions of this court, particularly the two hereinbefore set forth, are in accord with the announcement generally and in accord with 6 McQuillan Municipal Corporations, Revised Ed., Section 2874, which says among other things: "A municipality must exercise ordinary care to maintain in proper manner a system of gutters and drains constructed by it in its streets, and if due to its negligence they become obstructed so as to overflow and flood the private premises of a basement, the city will be liable."

The amount of the jury award is wholly excessive of any damage actually sustained.

Even if the court should hold that this appellee was entitled to damage which we respectfully submit that he was not, on the state of this record, we submit that he would only be entitled to nominal damages under the case of Watkins et al. v. The Board of Mayor and Alderman of the Town of Port Gibson, 113 Miss. 38, 73 So. 867, and as the court said in that case this cause should have been dismissed as a frivolous case.

The allegations of negligence on the part of the appellant were not sustained, and the peremptory instruction was proper in this case.

Chidsey v. The City of Pascagoula, 102 Miss. 709, 59 So. 879.

While the amount of this verdict is small, compared to other verdicts that were rendered by juries, yet it is unconscionable on the record in this case. Unquestionably the hopeless conflict in the instructions of the respective parties is sufficient in itself to reverse and remand this cause. Undoubtedly the verdict when viewed from the damages actually proved is so large that in itself it would require either a remittitur or a reversal and remanding. However, the controlling factor in the decision of this case, we respectfully submit, is that appellee has wholly failed to meet the burden placed upon him in actions of this character by law, and that the evidence wholly fails to show neglect, but on the other hand overwhelmingly shows a lack of negligence and therefore we respectfully submit, in conclusion, that the proper judgment of this cause is a reversal and rendition by this court.

Appellee says that the judgment of the lower court should be affirmed for three reasons. In the first place, he says he is now under Section 17 of the Constitution, although the case was never filed or tried on such a theory, and matters of proof that would have been necessary under this theory of liability have not been developed by either party to this appeal. Second, that there has been an obstruction to a natural water course, by the appellant, which provision has been fully discussed both from fact and law in appellant's original brief. Third, that the appellant was conclusively shown to be guilty of negligence in the installation and maintenance of the culvert and pipe therein; and as we have undertaken to fully develop this proposition in the original brief we rely on fact and law, rather than upon the conclusion of appellee's counsel.

We respectfully submit that there can be no question but that prejudicial error was committed in the instructions granted in this case and in permitting the verdict in the amount that was returned to stand, but when the record is viewed in its entirety, failure on the part of the appellee to prove negligence and the conclusive proof of no negligence in this matter is sufficient to justify and require a reversal with judgment in this court for the appellant.

L. J. Broadway, of Meridian, for appellee.

The appellee's position is that his granted instructions fairly and correctly state the applicable law, and that if there is a conflict, the instructions granted the appellant are wrong and incorrect and grant him much more favor than he is entitled to under the law as announced by this court.

The main point in the case is whether the city is liable only for neglignece.

The court will notice that the instruction here complained of is in almost identically the same language as Instruction No. 5 in the case of City of Vicksburg v. Porterfield, 164 Miss. 581, 145 So. 345.

No negligence need be proved in this type of action.

Thompson v. City of Philadelphia, 180 Miss. 190, 177 So. 39; N. O. & N. E. R. R. Co. v. Burdette, 183 So. 915, 188 So. 14.

In Hodges v. Town of Drew, 172 Miss. 668, 159 So. 298, an action for damages from overflowing sewage and pollution of a natural body of water, the city was held liable, notwithstanding negligence was alleged and as against the contention that the act of the city was in the exercise of its police power of conserving the public health, a governmental function.

Plaintiff did not in the lower court and does not here rely upon any such doctrine as "negligence per se" and "res ipsa loquitur." Plaintiff simply says that where for a public purpose the city inflicts special damage on him, not common to the general public, then under Section 17 of the Constitution, he must be compensated.

40 Cyc. 569; 67 C. J. 698., sec. 21; Thompson v. Mobile, J. & K. C. R. Co., 104 Miss. 651, 61 So. 596.

The second largest city in the state is appealing from a jury award of $ 500 against it, which award in addition has the deliberate approval of the trial judge; and that in a case where the substantially undisputed testimony shows that the plaintiff's premises had overflowed several times, that certain personal property was destroyed, his garden had to be replanted some 5 or 6 times, and the value of his premises reduced approximately 50%. He had invested about $ 2000 in the place, including purchase price and repairs made to it after he bought it, and this was his home place.

Johnson v. State, 154 Miss. 512, 122 So. 529; Goodyear Yellow Pine Co. v. Lumpkin, ...