Hemminger v. City of Des Moines

• Decision Date: 12 May 1925
• Docket Number: No. 36380.,36380.
• Citation: 199 Iowa 1302,203 N.W. 822
• Parties: HEMMINGER v. CITY OF DES MOINES.
• Court: Iowa Supreme Court

199 Iowa 1302

203 N.W. 822

HEMMINGER

v.CITY OF DES MOINES.

No. 36380.

Supreme Court of Iowa.

May 12, 1925.

Appeal from District Court, Polk County; O. S. Franklin, Judge.

Action in tort to recover damages alleged to have been caused by a defective sewer constructed by the defendant city. The material facts are stated in the opinion. A verdict was returned in favor of plaintiff in the sum of $1,200, and motion for new trial having been overruled, judgment was entered. The defendant appeals. Reversed.John J. Halloran, Reson S. Jones, Chauncey A. Weaver, and Paul Hewitt, all of Des Moines, for appellant.

Geo. F. Brooks and Harry W. Hanson, both of Des Moines, for appellee.

DE GRAFF, J.

This appeal involves the liability for damages to plaintiff by reason of an alleged faulty construction by the defendant city of a sanitary sewer past the premises of plaintiff. The particular defect has reference to the manner of connecting the sewer tile joints, which it is alleged permitted sewage to escape thereby contaminating plaintiff's well and causing injuries upon which his damages are predicated. There are two pleaded items of damage. In the first count, plaintiff seeks to recover $500 due to a depreciation of his residence property by reason of the loss of his well; and in the second count, damages in the sum of $3,055 are sought to be recovered by reason of the well contamination, thereby causing a typhoid epidemic in his family resulting in loss of wages to himself and minor son and in money expended for medicine, medical services, nurse hire, and incidental expenses in caring for his children during their sickness.

Two basic facts may be accepted as established by the record: (1) That the well on plaintiff's premises was contaminated from some source by typhoid germs causing it to be condemned, and (2) that certain members of plaintiff's family were seriously affected by typhoid fever in the month of October, 1920, caused by the drinking of water from said well.

Two questions are presented: Does the evidence bearing on the alleged negligence of the defendant city present a jury question? Does the evidence sustain an affirmative finding that the conditions as alleged and the resulting damages therefrom were proximately caused by the negligence of the defendant city in the construction of the sewer past the premises of plaintiff?

It appears that on the 10th day of August, 1917, the defendant city of Des Moines completed the construction of a 10-inch sewer about 12 feet deep on West Twenty-Third street north and south along said street past the residence property of the plaintiff. It is admitted that the specifications required that oakum which had been dipped in cement should be inserted at all tile joints and the joints then sealed with cement. In digging the trench for the tile a few feet south of plaintiff's residence, which faced west on Twenty-Third street, an unusually strong underground vein of water was unexpectedly tapped, which caused the stream to flow into the tile ditch and by reason thereof the engineers of the city in charge of the work were compelled to vary the manner and method of connecting the sewer tile for a short distance. One of the engineers testified:

“The digging machine had to be taken away from the ditch and considerable work done in there for a short distance by hand, and it was rather a difficult piece of work to handle. The sides were sheeted. The sewer was constructed in accordance with the plans and specifications so far as possible, and particular care was taken in that locality to get as good a sewer there as possible on account of the water. Particular care was taken in that there was considerable difficulty in putting the sewer through there. It required more care than usual. There were several things that could be done, and one was to do as they were instructed to do and the specifications required for that particular job, and that was to use cheesecloth to wrap around the cement to keep it from being washed out by the water. The city inspector was to use that cheesecloth both by instructions of myself and by specifications. There are other methods of taking care of those joints, some of them better, some of them not so good, and some more expensive, but they were not specified on this particular job.”

The sanitary engineer testified in connection with the method adopted as follows:

“All through the place where the water was excessive, we carried out the instructions of the city inspector. I remember buying two or three bolts of cheesecloth, and we put it all in that place and we cut sod, weeds, and grass and everything to stuff in around to keep the water from washing the cement out of the joints after it was put in.”

The sewer inspector testified:

“When we struck this water it rushed in on us. We had a hard battle. We used cheesecloth for laying of the pipe and had to wrap that cheesecloth around it and throw sod around it to protect the joints as best we could. The cheesecloth was put in there so as to keep the joint as nearly as possible to hold the cement together. By putting the cheesecloth around the joint we had time enough to get dry clay or sod around it and that would hold the joint long enough so that the water would not affect the cement. I have been familiar with sewer construction for 35 years. I ordered the sod and there was sod in front of the tile and back of the tile, and instead of taking the trowel we dumped buckets of cement in there, and as soon as the cement was dumped in we covered it over with sod and dry dirt. That was done on each joint on that particular tile where we struck the vein of water on Twenty-Third street.”

The tile layer, called on behalf of the plaintiff, testified that he observed the underground stream and that it flowed into the ditch “just the same as a water main busted. It had an awful bad effect on laying the tile. In cementing we sometimes use our hand and sometimes a trowel. When we did not use cement we used oakum. We put it between the bell and the spigot. The bell end of the tile lay up the line (to the north). There was a little space, 15--25--40 feet, where tile was laid without caulking it or cementing the joints. That was just south of Hemminger's place.”

A former city engineer called on behalf of the plaintiff testified in answer to a hypothetical question that the laying of this sewer tile without caulking and cementing the joints “would mean that it was not a proper sewer construction.”

The city inspector said on cross-examination that the situation at the time and place in question did not excuse the cementing of these tile joints, but this was not an admission on his part that the joints were not cemented. By reason of the primary question involved in this case, we deem it unnecessary to quote the record further in these particulars.

[1][2] It is well settled that a municipality acts under its governmental functions in adopting plans and specifications for a sewer system, and if such plans and specifications are the result of an honest exercise of judgment on the part of a competent engineer employed by the city, then the city is not liable for injury resulting from the adoption of such plans, provided that the construction thereunder is not done in a negligent manner. If a nuisance is occasioned by some negligence on the part of the city in the construction or maintenance of a public work, the city is liable on the theory that when the city itself undertakes to build, construct, or maintain public works, it assumes the performance of a ministerial function, and a failure on its part to exercise reasonable skill and care makes it answerable for injuries proximately caused by such negligence. These questions have been frequently before this court and well established precedentsare recognized in its decisions. Miller Grocery Co. v. City of Des Moines, 195 Iowa, 1310, 192 N. W. 306, 28 A. L. R. 815;Hines v. City of Nevada, 150 Iowa, 620, 130 N. W. 181, 32 L. R. A. (N. S.) 797;Walters v. City of Marshalltown, 145 Iowa, 457, 120 N. W. 1046, 26 L. R. A. (N. S.) 199;Fitzgerald et al. v. Town of Sharon, 143 Iowa, 730, 121 N. W. 523;Vogt v. City of Grinnell, 133 Iowa, 363, 110 N. V. 603;Rand Lbr. Co. v. Burlington, 122 Iowa, 203, 97 N. W. 1096;Young v. Rothrocl, 121 Iowa, 588, 96 N. W. 1105.

[3][4] It is not claimed that the engineers of the defendant city were incompetent, nor are the plans and specifications subject to any impeachment. The negligence is predicated on defective construction. It is obvious that a city can act only through the agency of others, and consequently it was a duty of the city to select competent engineers. As said in Van Pelt v. City of Davenport, 42 Iowa, 308, 20 Am. Rep. 622:

“When such selection is made, the city has in that regard discharged its duty, and no direct negligence * * * is attributable to it. * * * If he [[[engineer] is sufficiently competent and makes a mistake after the honest exercise of his best judgment, it is such a mistake as is inseparable from human action.”

In other words, a city is not an insurer and is not liable unless for negligence in its performance of a duty.

[5] Plaintiff alleges in his petition that:

“Said sewer was negligently constructed, and that the tiles of which it was constructed and which were the means of conducting and retaining the stream...