City of New Albany v. Lines
| Decision Date | 07 October 1898 |
| Docket Number | 2,588 |
| Citation | 51 N.E. 346,21 Ind.App. 380 |
| Parties | CITY OF NEW ALBANY v. LINES ET UX |
| Court | Indiana Appellate Court |
Rehearing denied January 10, 1899.
From the Floyd Circuit Court.
Affirmed.
George H. Hester, W. H. H. Miller and J. B. Elam, for appellant.
C. L Jewett and H. E. Jewett, for appellees.
The appellees, James and Etta Lines, sued the appellant, the complaint containing two paragraphs, a demurrer to each of which for want of sufficient facts was overruled. Issues of fact were formed, the trial of which by jury resulted in a general verdict for the appellees for $ 500. Answers of the jury to interrogatories indicate that the trial of the cause proceeded upon the second paragraph of the complaint. This paragraph showed that the appellees were husband and wife that the latter was the owner in fee simple of a house and lot in the city of New Albany, bounded on the east by Thomas street and on the south by an alley; that she had owned said premises since 1893, and from that time had been in possession thereof, and for the greater part of the time had occupied the same with her said husband as her dwelling house; that said house faced on said street, and extended back along said alley, the windows on the south side of the building opening upon the alley, and the house being in part ventilated by these openings; that in 1890 the city, under ordinance and resolutions of the common council duly enacted and passed, improved said alley along the south line of said premises; that in said improvement the appellant dug out and removed the earth therefrom, thereby reducing the grade of the alley two feet below the surface of said street at the point where the alley intersected the street; that, under the plan as adopted and carried out in the making of said improvement by the grading and paving of the alley, the surface water accumulated in the alley, in draining off the lots abutting on the alley along the line thereof, was carried eastward along the alley to said street, and was drained upon and held in check by said street at said intersection by reason of the fact that the street was higher than the surface of the alley; that, for the purpose of draining the alley and carrying off such water, a sewer pipe about eight inches in diameter was laid in and across said street, after the making of the improvement, but it was insufficient, and did not properly drain the alley; that when, in 1893, the appellee Etta Lines purchased said premises, she had no notice or knowledge that said drain was insufficient, or that it would not carry off said surface water and keep said alley clean and wholesome, but believing, in good faith, that the alley was properly constructed, and that a proper plan had been adopted by the common council for the drainage thereof, she purchased the property and went into possession thereof; that after her said purchase the appellant, by its agents and servants, undertook to alter and improve such drainage, and for that purpose took up and removed said sewer pipe in said street, and relaid it, carrying it from said intersection in a northeasterly direction, across and in front of said premises, to Culbertson avenue; that the appellees, believing, in good faith that said pipe was being properly laid and would properly drain the alley, made no objection to the relaying thereof; that the appellant did not properly relay said pipe for the drainage of the alley, but adopted and carried out a defective, unskilful, and negligent plan in laying down said pipe, in this: that in laying it, and for the purpose of making a sufficient fall to allow the water to pass through it from the alley to said avenue, the appellant raised the mouth or opening of said pipe where it entered the alley from Thomas street at said intersection four inches above the surface of the alley as so improved; that, by reason of the fact that it was so raised above the grade and surface of the alley, the surface water and drainage in the alley accumulated and backed to the depth of four inches in the center of said alley before it would pass out through said pipe, thus keeping said water and drainage standing to that depth at all times; that such water became stagnant and offensive, and that noxious odors and vapors arose from it; that the appellant was negligent and unskilful in the construction of said sewer and drainage pipe, in this: that said pipe was not of sufficient size to carry off the water accumulating during rains and storms in said alley, and that by reason of the smallness of the pipe and its lack of capacity to carry off surface water, the same was gathered upon, held in check, and thrown back and in upon the real estate and premises of the appellees, thereby covering the same with water, and making the same damp and unwholesome, and rendering said premises less desirable as a place of residence; that by reason of the accumulation of unwholesome animal and vegetable matter in said alley at the mouth of said sewer, and the holding of the same in check there as aforesaid, unwholesome stenches, odors, and vapors were created and arose therefrom, and flowed in and upon said house, making the air of the same impure and unwholesome; that the appellee James H. Lines had been made sick from the same, and had been unable to follow his trade and occupation for four months, and had been put to great expense in and about curing himself by the purchase of medicines and procuring the services of a physician, to wit, in the sum of $ 100; that for the purpose of curing himself of such illness, the appellees were compelled to move out of said premises until he regained his health, and during such period, to wit, six months, the appellees were unable to rent said premises, because of such unwholesome and noxious vapors and odors, and wholly lost the rent thereof amounting to $ 50; that the value of said real estate had been greatly reduced by such noxious odors and vapors coming in and upon said premises, and by the surface water in said alley being thrown back in and upon said premises, to wit, in the sum of $ 500. It was further alleged that said injuries were suffered without any fault or negligence on the part of the appellees, or either of them, but solely through the fault and negligence of the appellant, in this: that the appellant was negligent, careless, and unskilful in the formation and adoption of the plan for the drainage of said alley, placing the opening of the sewer pipe above the grade and surface of the alley, thus allowing the water to accumulate, etc., and in laying the pipe in such manner as to hold such surface water in check, and accumulate it in said alley, thereby causing it to become stagnant and offensive, and in laying said pipe of an insufficient size and inadequate to carry off said surface water, thereby causing it to be gathered up, held in check, and thrown back upon said premises; that, by reason of such negligent and unskilful acts on the part of the appellant, the appellees had been damaged in the sum of $ 1,000; "wherefore plaintiffs demand judgment," etc.
In this complaint the appellees sought to recover for injury suffered by the wife and by the husband separately, from the same cause, and it is contended on behalf of the appellant that for this reason the complaint was bad on demurrer. It is a familiar general rule that, to withstand a demurrer for want of sufficient facts, a complaint must state a cause of action in favor of all the plaintiffs. Berkshire v. Shultz, 25 Ind. 523; Neal v. State, 49 Ind. 51; Goodnight v. Goar, 30 Ind. 418; Debolt v. Carter, 31 Ind. 355; Parker v. Small, 58 Ind. 349; Ohio, etc., R. Co. v. Cosby, 107 Ind. 32, 7 N.E. 373; Traders Ins. Co. v. Newman, 120 Ind. 554, 22 N.E. 428.
It is quite certain that for a cause of action in the husband alone, the wife could not properly be joined as a co-plaintiff, and that, if the complaint by husband and wife stated only such cause of action, it would be bad on demurrer for want of facts sufficient to constitute a cause of action. A married woman may sue as sole plaintiff, under section 255, Burns' R. S. 1894 (254, Horner's R. S. 1897), where the action concerns her separate property, or her husband may be joined with her as her co-plaintiff. Welch v. Bunce, 83 Ind. 382. See Martindale v. Tibbetts, 16 Ind. 200; Hollingsworth v. State, 8 Ind. 257; Atkinson v. Mott, 102 Ind. 431, 26 N.E. 217; Roller v. Blair, 96 Ind. 203.
In the various changes made by the legislature in the law concerning husband and wife, our courts, clinging to the common law adjective as well as substantive, except as changed by statute, have sanctioned the joinder of the husband as a plaintiff, when perhaps it may be said no substantial reason exists for retaining the practice even as a permissive one; but, however...
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