Cole v. Kansas City
| Decision Date | 06 April 1935 |
| Docket Number | 32115. |
| Citation | 42 P.2d 940,141 Kan. 633 |
| Parties | COLE v. KANSAS CITY. [*] |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In building owner's action against city for damage to building caused by defective fire hydrant, jury's special findings that damage to building occurred more than three months prior to date when claim was filed with city and that hydrant was in good condition from about five months prior to date claim was filed until time of trial precluded recovery notwithstanding general verdict for building owner (Rev. St 1923, 12-105).
In an action for damages against a city on account of the maintenance of a defective fire hydrant, the record is examined, and it is held that the answers to special questions compel a judgment for defendant notwithstanding the general verdict.
Appeal from District Court, Division No. 2, Wyandotte County; Clyde C. Glandon, Judge.
Action by E. D. Cole against Kansas City. Judgment for plaintiff and defendant appeals, and plaintiff cross-appeals.
Judgment reversed, with directions.
Alton H. Skinner, William Drennan, John C. O'Brien, Clarence A Mott, Otto Ziegelmeyer, and Charles W. Lowder, all of Kansas City, for appellant.
A. J. Herrod, of Kansas City, for appellee.
This was an action for damages to a building alleged to have been caused by a defective fire hydrant. Judgment was for plaintiff. Defendant appeals.
Plaintiff alleged in his petition that the defendant maintained a defective hydrant over a period of time from February 1, 1932, to about August 11, 1932. On the above date he filed his statement and claim for damages with the city.
Defendant answered with a general denial, and that the hydrant in question was maintained by the board of public utilities of the city for use in its governmental capacity, and that, if it caused damages to the property of plaintiff, the damage resulted from interlopers or third parties interfering with it without the knowledge of defendant.
At the close of the evidence of plaintiff, a demurrer of defendant to the evidence was overruled, and defendant rested.
The case was tried before a jury. A verdict for plaintiff was returned, and special questions were answered. The trial court overruled a motion of defendant for judgment on the special questions, notwithstanding the general verdict, and for a new trial, and gave judgment for the plaintiff. From that judgment this appeal is taken.
The facts are that in 1930 the plaintiff owned a building located on a corner in Kansas City. In 1931 the city condemned the west side of this building and it was torn down. The entire building was rebuilt. This necessitated a fill of considerable amount along the west side of the building where the sidewalk was built. There was a hydrant located near the corner. When the street was widened in 1931, the old hydrant was taken out and a new steamer Ludlow hydrant was installed.
In February or March, 1932, the foundation of the building of plaintiff became wet; the water came through and under the foundation every time the hydrant was used. It caused the brick work to crack and the walls, plaster, and floors of the room to crack. All this was testified to by plaintiff, and, since it is not contradicted by defendant, must be taken as true.
Among the special questions answered by the jury were the following:
It is these answers which defendant argues entitle it to a judgment.
It will be remembered that plaintiff filed his claim with the city for damages on August 11, 1932. The court instructed the jury as follows: "However, if in case you find for the plaintiff, you can allow him only such items of damage as you find from the evidence were sustained by him within a period of three months prior to August 10, 1932."
The above instruction was given on account of R. S. 12--105. That section is as follows:
In this connection, the answer to question No. 10 becomes important. In order for the claim for the damages, of which complaint is made, to be filed in time under R. S. 12--105, the damages must have occurred not more than three months prior to August 10, 1932, or subsequent to May 10, 1932. Now, the jury by its answer to question No. 10 found that the hydrant was in good...
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Adams v. Arkansas City
...preceding the filing of the written statement of claim with the city. Jeakins v. City of El Dorado, supra; Cole v. City of Kansas City, 141 Kan. 633, 42 P.2d 940; Steifer v. City of Kansas City, supra; and Watkins v. City of El Dorado, supra. However, it was held in Avery v. City of Lyons, ......
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Workman v. City of Emporia
...288, we held that a claim which was filed one day late was not filed within the required three months. See, also, Cole v. City of Kansas City, 141 Kan. 633, 42 P.2d 940, and Beard v. Kansas City, 96 Kan. 102, 150 P. Plaintiff's contention that his incompetence should excuse him from complyi......