City of North Vernon v. Voegler

Citation2 N.E. 821, 103 Ind. 314
Case DateOctober 27, 1885
CourtSupreme Court of Indiana

103 Ind. 314
2 N.E. 821

City of North Vernon
v.
Voegler.
1

Supreme Court of Indiana.

Filed October 27, 1885.


Appeal from Jennings circuit court.


John G. Berkshire, for appellant.

Elliott, J.

There are two paragraphs in the appellee's complaint, both alleging that the appellant so negligently and unskillfully graded one of its public streets as to change the flow of surface water, gather it in one channel, and pour it upon the lots of the appellee, greatly injuring her property.

The first paragraph of the complaint differs from the second in one particular, and that is in alleging that a former action was commenced by the appellee which resulted in a judgment in her favor. The allegations upon this subject are these: “That in September, 1879, the plaintiff brought suit against the defendant for the damages then accrued to her by reason of the overflowing and injury of her premises up to that time; that in March, 1880, she recovered judgment in that action for eighty dollars so accrued up to September, 1879; that all of said overflowings of said premises have continued, as also the other said injuries to plaintiff's premises ever since September, 1879, when the former action was brought, but the defendant has done nothing and made no effort to change or prevent said flow of water over the lot of plaintiff.” On

[2 N.E. 822]

these averments the appellant founds the objection to the complaint that it shows on its face that the matter pleaded has been adjudicated; but as there are answers which more clearly present the question, we defer our consideration of it until we take up those answers.

The second paragraph of the answer is in substance this: The improvement of the street was made under an ordinance and a plan of the common council, duly enacted and adopted; that the improvement of the street was, in the judgment of the common council, necessary and proper; and that the injuries complained of were the unavoidable result of the improvement of the street.

The sufficiency of this answer is sought to be maintained upon the decision in Rozell v. City of Anderson, 91 Ind. 591, but that decision is very far from sustaining such an answer as the one before us. In that case the evidence was not in the record, as the opinion shows, and the court was simply called upon to determine whether the instruction assailed was correct upon any supposable state of the evidence admissible under the issue in the case. We have no doubt that the ruling in that case was right upon the question as the record presented it. We hold now, as we held then, that, as an abstract rule of law, a municipal corporation is not liable for mere errors of judgment as to the plan of a public improvement; but we did not then hold, nor do we now hold, that for negligence, whether in the plan of the work or its execution, a municipal corporation is not liable. That we did not then hold that for negligence the municipal corporation is not liable is evident from the fact that the court, in the opinion given in that case, cites with approval the cases which hold a municipal corporation liable for negligence in the plan of an improvement as well as in the manner of executing the work. We have many cases, extending from City of Indianapolis v. Huffer, 30 Ind. 235, down to City of Crawfordsville v. Bond, 96 Ind. 236, holding that for negligence in devising a plan, as well as for negligence in executing it, the municipal corporation is liable. This was, in effect, the decision in the case appealed to this court by the appellant involving the sufficiency of just such an answer as that now before us. City of North Vernon v. Voegler, 79 Ind. 67. The question was fully considered, and the authorities cited in the cases of City of Evansville v. Decker, 84 Ind. 325;Cummins v. City of Seymour, 79 Ind. 491; S. C. 41 Amer. Rep. 618; Weis v. City of Madison, 75 Ind. 241; S. C. 39 Amer. Rep. 135; City of Indianapolis v. Tate, 39 Ind. 282; City of Indianapolis v. Lawyer, 38 Ind. 348. The doctrine is not only sustained by authority, but is sound in principle. Suppose that a common council of a city determine to build a sewer and cover it with reeds, can it be possible that the corporation can escape liability on the ground that the common council erred in devising a plan? Or, to take such a case as City v. Huffer, suppose the common council undertake to conduct a large volume of water through a culvert capable of carrying less than one-tenth of the water conducted to it by the drains constructed by the city, can responsibility be evaded on the ground of an error of judgment? Again, to take an illustration from a somewhat different class of cases, suppose the common council to devise

[2 N.E. 823]

a plan for a bridge that will require timbers so slight as to give way beneath the tread of a child, can the city escape liability on the ground that there was only an error of judgment in devising the plan?

Illustrations might be indefinitely multiplied, but it is unnecessary to pursue the subject. The only rule that has any valid support in principle is that for errors in judgment in devising a plan there is no liability, but there is liability where the lack of care and skill in devising the plan is so great as to constitute negligence. Our decisions have long and steadily maintained that municipal corporations are not responsible for consequential injuries resulting from the grading of streets where the work is done in a careful and skillful manner; but they have quite as steadily maintained that where the work is done in a negligent and unskillful manner, the corporation is liable for injuries resulting to adjacent property. City of Kokomo v. Mahan, 100 Ind. 242, see page 246; City of Crawfordsville v. Bond, supra;Princeton v. Gieske, 93 Ind. 102;Weis v. City of Madison, 75 Ind. 241; S. C. 39 Amer. Rep. 135; City of Evansville v. Decker, supra, and authorities cited; Macy v. City of Indianapolis, 17 Ind. 267.

The complaint in this case very fully alleges the negligence and unskillfulness of the defendant, and an answer admitting these allegations cannot avoid them by averring, as the one before us does, that the negligence and want of skill were not in doing the work, but in devising the plan. We have not considered the fugitive denials cast into the answer, for the reason that it is now well settled that pleadings are to be judged by their general scope and tenor, and not by detached and isolated statements thrown into them. Neidefer v. Chastain, 71 Ind. 363;W. U. Tel. Co. v. Reed, 96 Ind. 195, see page 198.

There are several paragraphs of answer pleading a former adjudication, and we perceive no substantial difference between them; but, as we are not aided by a brief from the appellee, and as the third paragraph presents the question in a clearer light than the others, we confine our investigation and decision to that paragraph. The material averments of this paragraph, exhibited in a condensed form, are these: On the eighteenth day of September, 1879, the appellee filed her complaint in the Jennings circuit court against the appellant, and in the action thus begun the appellee recovered judgment for $80 at the March term, 1880. This judgment remains in full force. The complaint in that action stated as a cause of action the injuries to the same property from the same negligent and unskillful improvement of the same street as that described and charged in the present action. The appellant has made no other improvement than the one described in the former complaint, and the injuries resulting to appellee's property were such only as were caused by the improvement made prior to the filing of the complaint in the action begun in September, 1879. The concluding averment of the answer is this: “And it is the grading of the same street, and the building of the same culverts, and the identical negligence and want of care and skill now complained of, that was complained of in the former action, and no other.”

[2 N.E. 824]

The answer presents a question of great importance and much difficulty. The theory of the appellee, as we infer from the record, is that the former action embraced only such damages to the real estate as occurred prior to the recovery of the judgment in that action. The theory of the appellant is that the former action embraced all damages resulting to the appellee's property from the negligent improvement of the street, and that a second action cannot be maintained for the same breach of duty that formed the basis of the first action. There is a material distinction between damages and injury. Injury is the wrongful act or tort which causes loss or harm to another. Damages are allowed as an indemnity to the person who suffers loss or harm from the injury. The word “injury” denotes the illegal act; the term “damages” means the sum recoverable as amends for the wrong. The words are sometimes used as synonymous terms, but they are, in strictness, words of widely different meaning. There is more than a mere verbal difference in their meaning, for they describe essentially different things. The law has always recognized a difference between the...

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92 practice notes
  • City of Rawlins v. Jungquist
    • United States
    • United States State Supreme Court of Wyoming
    • March 21, 1908
    ...fresh annoyance occurs." The author cites in support of the text: City of Lafayette v. Nagle, 113 Ind. 425; City of Vernon v. Voegler, 103 Ind. 314, 2 N.E. 821; Central Branch R. R. Co. v. Andrews, 34 Kan. 563. The author further says, on the same page, that this rule "is in strict harmony ......
  • Pickens v. Coal River Boom & Timber Co
    • United States
    • Supreme Court of West Virginia
    • May 4, 1909
    ...R. A. 210, 25 Am. St. Rep. 608; Fowle v. New Haven & Northampton Co., 112 Mass. 334, 17 Am. Rep. 106. The City of North Vernon v. Voegler, 103 Ind. 314, 2 N. E. 821, was a suit for injury to property resulting from negligently grading a street, and the court thus states the law: "In an acti......
  • Boise Valley Const. Co. v. Kroeger
    • United States
    • Idaho Supreme Court
    • December 11, 1909
    ...Van Hoozier v. Ry. Co., 70 Mo. 145; New York National Bank v. Met. Er. Co., 108 N.Y. 660, 15 N.E. 445; City of North Vernon v. Voegler, 103 Ind. 314, 2 N.E. 821; Smith v. Seattle, 18 Wash. 484, 63 Am. St. 910, 51 P. 1057; Church v. Paterson, 66 N.J.L. 218, 49 A. 1030, 55 L. R. A. 81; Bank v......
  • Vasu v. Kohlers, Inc., No. 30078.
    • United States
    • Ohio Supreme Court
    • May 31, 1945
    ...173, 88 N.W. 156;National Copper Co. v. Minnesota Mining Co., 57 Mich. 83, 23 N.W. 781,58 Am.Rep. 333;City of North Vernon v. Voegler, 103 Ind. 314, 2 N.E. 821. This doctrine is illustrated by the case of Roberts v. Read, 16 East, 215, 104 Eng.Rep. R., 1070, where the action was based on th......
  • Request a trial to view additional results
92 cases
  • City of Rawlins v. Jungquist
    • United States
    • United States State Supreme Court of Wyoming
    • March 21, 1908
    ...fresh annoyance occurs." The author cites in support of the text: City of Lafayette v. Nagle, 113 Ind. 425; City of Vernon v. Voegler, 103 Ind. 314, 2 N.E. 821; Central Branch R. R. Co. v. Andrews, 34 Kan. 563. The author further says, on the same page, that this rule "is in strict harmony ......
  • Pickens v. Coal River Boom & Timber Co
    • United States
    • Supreme Court of West Virginia
    • May 4, 1909
    ...R. A. 210, 25 Am. St. Rep. 608; Fowle v. New Haven & Northampton Co., 112 Mass. 334, 17 Am. Rep. 106. The City of North Vernon v. Voegler, 103 Ind. 314, 2 N. E. 821, was a suit for injury to property resulting from negligently grading a street, and the court thus states the law: "In an acti......
  • Boise Valley Const. Co. v. Kroeger
    • United States
    • Idaho Supreme Court
    • December 11, 1909
    ...Van Hoozier v. Ry. Co., 70 Mo. 145; New York National Bank v. Met. Er. Co., 108 N.Y. 660, 15 N.E. 445; City of North Vernon v. Voegler, 103 Ind. 314, 2 N.E. 821; Smith v. Seattle, 18 Wash. 484, 63 Am. St. 910, 51 P. 1057; Church v. Paterson, 66 N.J.L. 218, 49 A. 1030, 55 L. R. A. 81; Bank v......
  • Vasu v. Kohlers, Inc., No. 30078.
    • United States
    • Ohio Supreme Court
    • May 31, 1945
    ...173, 88 N.W. 156;National Copper Co. v. Minnesota Mining Co., 57 Mich. 83, 23 N.W. 781,58 Am.Rep. 333;City of North Vernon v. Voegler, 103 Ind. 314, 2 N.E. 821. This doctrine is illustrated by the case of Roberts v. Read, 16 East, 215, 104 Eng.Rep. R., 1070, where the action was based on th......
  • Request a trial to view additional results

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