City of New Cordell v. Lowe
| Decision Date | 19 November 1963 |
| Docket Number | No. 40216,40216 |
| Citation | 389 P.2d 103,1963 OK 265 |
| Parties | The CITY OF NEW CORDELL, Oklahoma, a Municipal Corporation, Plaintiff in Error, v. Kenneth W. LOWE and Billie J. Lowe, husband and wife, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. A question as to the sufficiency of the evidence for submission to the jury is not preserved for review where defendant demurs to plaintiffs' evidence and after the demurrer is overruled introduces evidence in its own behalf and makes no objection to the sufficiency of the evidence as a whole until the filing of its motion for a new trial.
2. On the basis of the evidence in this case the trial court committed no error in giving its instructions numbered '(6)' and '(8)' and in refusing to give defendant's requested instruction numbered '(5)'.
3. It is ordinarily error for the plaintiff to mention the fact before the jury that the defendant is insured against the liability which he is seeking to establish, or that he has no protecting insurance.
Appeal from the District Court of Washita County; Weldon Ferris, Judge.
Action by the owners and inhabitants of a residence, as plaintiffs, against the City of New Cordell, as defendant, for damages on account of a sewage overflow. After verdict and judgment for plaintiffs, and the overruling of its motion for a new trial, defendant appealed. Affirmed on condition of remittitur, otherwise reversed.
Wesner & Wesner, Cordell, for plaintiff in error.
Bailey & Jones, Cordell, for defendants in error.
A sewer line, referred to hereinafter as the 'branch line' funneled sewage from the residence of the defendants in error, hereinafter referred to as plaintiffs, into one of the sewer mains, or main lines, of plaintiff in error, hereinafter referred to as defendant. On March 8, 1961, this main became clogged, and raw sewage backed up through the branch line into the residence, inundating its floors with about 4 inches of watery, foul-smelling refuse.
Thereafter, on the same day, employees of the defendant city assisted plaintiffs in draining off, and attempting to wash out, this refuse from the property, and, in the process, plaintiffs' rugs and carpets were taken to the City dump, and furniture and other household furnishings were transported to empty storage space in the city hall, where it has since remained. Plaintiffs vacated their home and moved into a furnished apartment; and had never attempted to re-occupy the home, at the time they brought this action against the defendant, about two months later, for damages on account of the inundation of their home.
In their petition, plaintiffs alleged, inter alia, that by reason of the overflow, their dwelling was impregnated with the raw sewage, and, as a result of this and the foul and offensive odors emanating therefrom, said home had become unfit for habitation, and its market value depreciated in the amount of $7500.00, for which they prayed judgment. Attached to their petition as 'Exhibit A' was a claim previously presented to, and rejected by, defendant's city council, listing many other items of claim damages of a net total of $5080.50, for which plaintiffs also prayed judgment. Of the latter total, $2669.57 was comprised of the claimed value of the furniture, clothing and other personal property in the home at the time of its inundation. Another part of this total, or $1170.43, included such items as so-called 'moving expenses' to the apartment plaintiffs were then occupying, and the anticipated expense of moving out of it into another home, when it was acquired, remuneration for plaintiffs' loss of time in both of such moves, reimbursement for their 'nights lodging' in a motel the same evening the inundation occurred, plus the cost of the meals they had in a restaurant until they moved into the apartment, and rental on the apartment which, figured from 'March, 1961' to February, 1962 (when the case was tried), totalled $875.00. In addition to these items, plaintiffs prayed judgment for an unitemized sum of $1500.00 listed as being for 'Discomfort and annoyance.'
Evidence adduced at the trial, and virtually undisputed, fixed the cause of the sewer's clogging as tree roots which had penetrated the main line. Other evidence established that, in this instance, as in others that had occurred in the past, the line was unstopped by 'rodding' or reaming it out. Testimony of one of the County Commissioners residing in the defendant city, tended to show that recurrence of such flooding, of a house belonging to him, had been prevented by the installation of a 'check', or 'cut off', valve in the line extending from his house to the connecting main. That the same could be accomplished with reference to plaintiffs' home, was apparently not taken into consideration by plaintiffs' witnesses to the diminution in their home's value as a result of the inundation. They gave estimates of the home's market value before the incident, ranging from $9000.00 to $10,000,00, inclusive. Their opinions of its value, after the overflow, ranged from $2000.00 to $3000.00, but they indicated that one element in their arriving at the latter low figures was the lack of assurance that other such overflows would not occur in the future. One of the plaintiffs, Mr. Lowe, and another of their witnesses, a real estate and insurance dealer named Burt Miller, even went further, under interrogation by plaintiffs' counsel, and revealed not only that plaintiffs did not have any insurance against such losses, but also that no such insurance protection was available for purchase. Each time the subject of insurance was mentioned in this manner, defense counsel objected and moved for a mistrai, but the trial court ruled against them, and exceptions were taken to said rulings.
The only expert testimony plaintiffs adduced in support of their claim of loss on their residence's contents was that of Art Self, a dealer in new and used furniture, appliances, and carpets. His estimates of the value of the various items of plaintiffs' household furnishings, both before and after the inundation, were taken from an appraisal he and a partner made after viewing them. This appraisal was not introduced in evidence, but in this witness' testimony from it, items mentioned in Mr. Lowe's testimony, and listed on plaintiffs' aforementioned 'Exhibit A', as having a total value, before the overflow, of $1678, were given a value of only $635.00. With the salvage value of $200.50, Mr. Self gave them, deducted from his estimate of these items' previous value, plaintiffs' net loss thereon was only $484.50, or roughly only 22% of the amount they claimed.
At the close of plaintiffs' evidence, the defendant demurred thereto, but said demurrer was overruled, and defendant proceeded to introduce its evidence. At the close of all of the evidence, the cause was submitted to the jury, under the court's instructions, without defendant challenging the evidence's sufficiency by a motion for directed verdict, or otherwise. Thereafter a verdict was returned for plaintiffs in the lump sum of $8250.00, and judgment was rendered accordingly. After the overruling of its motion for a new trial, defendant perfected the present appeal.
Under its first proposition for reversal, defendant contends that the trial court erred in overruling its demurrer to plaintiffs' evidence for the reason that '* * * plaintiffs failed to show that defendant had knowledge and notice of the clogged condition of its sewer (before the overflow involved).' We have not reviewed the record as to this, because, as hereinbefore noted, no predicate was laid at the close of the trial for such a review. This court has long adhered to the rule for which defendant cites Friedman v. Hill, Okl., 325 P.2d 434, that:
'A question as to the sufficiency of the evidence for submission to the jury is not preserved for review where defendant demurs to the plaintiff's evidence and, after the demurrer is overruled, introduces evidence in his own behalf and makes no objection to the sufficiency of the evidence as a whole until the filing of his motion for a new trial.'
In the absence of a predicate for consideration of the evidence as a whole, defendant's first proposition presents no error preserved for review...
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