Jacoby v. Town of City of Gillette, 2336 and 2337

• Decision Date: 26 November 1946
• Docket Number: 2336 and 2337
• Citation: 62 Wyo. 487,174 P.2d 505
• Parties: MARGUERITE A. JACOBY, Plaintiff and Appellant, v. THE TOWN OF THE CITY OF GILLETTE, WYOMING, a Municipal Corporation, Defendant and Respondent. T. C. WASSENBERG, Plaintiff and Appellant, v. THE TOWN OF THE CITY OF GILLETTE, WYOMING, a Municipal Corporation, Defendant and Respondent
• Court: Wyoming Supreme Court

174 P.2d 505

62 Wyo. 487

MARGUERITE A. JACOBY, Plaintiff and Appellant, v. THE TOWN OF THE CITY OF GILLETTE, WYOMING, a Municipal Corporation, Defendant and Respondent.

T. C. WASSENBERG, Plaintiff and Appellant, v. THE TOWN OF THE CITY OF GILLETTE, WYOMING, a Municipal Corporation, Defendant and Respondent

Nos. 2336 and 2337

Supreme Court of Wyoming

November 26, 1946

Rehearing Denied 62 Wyo. 487 at 514.

APPEAL from District Court, Campbell County; P. W. METZ, Judge.

Actions by Marguerite A. Jacoby and T. C. Wassenberg against the Town of the City of Gillett, Wyoming, a municipal corporation, to recover for damages caused by the overflow of a drainage canal. The cases were tried together and from judgments of dismissal, plaintiffs appeal and the cases were consolidated on appeal.

Judgments affirmed.

Affirmed.

For the plaintiffs and appellants the cause was submitted on the brief of E. C. Raymond of Newcastle, Wyoming and R. G Diefenderfer of Sheridan, Wyoming.

POINTS OF COUNSEL FOR APPELLANTS

In general, a municipal corporation owning property as a private owner is chargeable with the same duties and obligations and is liable in the same way for injuries arising from neglect as a private owner. 38 A. J. 163.

A city is under the duty of using reasonable diligence to keep a sewer free from obstructions although it did not originally construct it where it had assumed its control and management. Taylor v. Austin, 32 Minn. 247, 20 N.W. 157.

It has since been assumed that all duties of municipal corporations are performed either as a substitute for the state and for the benefit of the public in general, or as a substitute for business corporations and for the benefit of the municipality. In the performance of the first class of duties the city is immune as the state would be, and in the other it is liable as a business corporation would be. Ramirez v City of Cheyenne (Wyo.) 241 P. 710.

The operation and maintenance of drains and sewers, the duty to make repairs and the duty to keep them clear and free of obstruction are ministerial or proprietary functions of the municipal corporation and not governmental functions within the rule of municipal immunity for liability for tort and for damages caused by its negligence. In this regard, a municipal corporation is liable in the same way and to the same extent. 38 A. J. 340, 43 C. J. 1130-1.

Liability does not depend on negligence in construction, but upon negligence in not keeping the water confined. No matter in what the negligence consisted, it is proved by the bursting of the tank. The rule res ipsa loquitur applies. Weaver Mercantile Co. v. Thurmond, 68 West Virginia 530, 70 S.E. 126, 33 LRANS 1061.

The rule is general that, where one brings a foreign substance on his land, he must take care of it and not permit it to injure his neighbor. Parker v. Larson, 24 P. 989.

One who wrongfully causes water to flow upon another's land, which water did not flow there naturally, may create a nuisance; and such nuisance has been referred to as a nuisance per se. 46 C. J. 727.

Under the universally recognized rule that when "the neglect of a responsible person concurs with a so-called act of God in producing an injury" the party guilty of such neglect will be held liable for the injurious consequences "if the injury would not have happened except for his failure to exercise care". 38 A. J. 719-721.

The doctrine res ipsa loquitor asserts that whenever a thing which produced an injury is shown to have been under the control and management of the defendant, and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised, the fact of injury itself will be deemed to afford sufficient evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care. 20 R. C. L. 187.

For the defendants and respondents the cause was submitted on the brief of Earl Dunlap and Elwood Anderson, both of Gillette, Wyoming.

POINTS OF COUNSEL FOR RESPONDENT

Apart from negligence in failing to make proper inspection or in failing to discover and remove obstructions or defects within a reasonable time, municipal corporations are not liable for injuries from such obstructions or defects in the absence of actual notice. This liability, however, depends on the negligence of the municipality. It is not liable for damages resulting from the clogging of a drain or sewer, if there is no negligence on its part either in the prevention or the removal of the obstruction, although in some states there are statutes placing the duty to repair so firmly on the municipality as practically to make it an insurer. 38 A. J. 342.

The town acted promptly when the flood occurred to do everything that they could, even to trespassing upon other people's land to cut the ditch outside the corporate limits. This was the first flood in all of the memory of man and the first flood since the creation of the ditch many years ago, that produced more water through the Town of Gillette than capacity of the ditch was capable of carrying in. Nothing would indicate that the city should have anticipated any greater flood. The Town was free of negligence in caring for the ditch and the flood was such a one as to come properly under the designation of being an "Act of God".

There is an oft-repeated general principle that a municipal corporation has powers of two kinds, first, those that are governmental or public in the performance of which there is no implied common law liability for negligence, and second, those that are corporate or private for the negligent performance of which the city is subject to the same liability as individual or business corporations. This division of the powers of municipal corporations for the purpose of determining their tort liability is recognized by most of the courts of this country. 34 Wyo. 73.

RINER, Justice. KIMBALL, J., and TIDBALL, Dist. Judge, concur.

OPINION

RINER, Justice.

These two cases come here by direct appeal proceedings from the District Court of Campbell County upon one record, having been tried together to the court without a jury. All the litigants through their respective counsel have stipulated that the causes should be consolidated in this court for all purposes including abstracting, briefing, argument and determination. An appropriate order has been entered here agreeable to this stipulation.

As regards the matter of liability of the respondent, The Town of the City of Gillette, both cases rest upon the same facts. The specification of errors in each is the same, consisting of but two assignments which may be summed up in the simple claim by the appellants that the judgments are not supported by the evidence and hence are contrary to law. One opinion will suffice, therefore, to dispose of both cases.

As may be inferred from what has already been said, the trial resulted in judgments rendered in favor of the Town of the City of Gillette which will usually hereinafter be mentioned as the "City", it being the defendant in each case in the District Court. The appellants, Marguerite A. Jacoby, plaintiff in one case, and T. C. Wassenberg, plaintiff in the other, may be referred to for convenience and brevity as the "plaintiffs". Wherever necessary, their respective surnames will be used. The judgments in question were similar, the court finding generally for the defendant and against the plaintiffs and ordering that the petition in each case be dismissed. Both actions were brought against the City to recover for damage caused plaintiffs on account of the over-flow of a certain ditch or canal constructed to carry off drainage waters from sundry lands located without the corporate limits of the municipality above named, but which passed through them. A more particular description of this ditch or canal will be given hereinafter. In plaintiffs' petitions it was charged in paragraphs numbered "6" that:

"the defendant, having the sole control and ownership of said ditch, owed to the plaintiff the duty of keeping and maintaining the said ditch in a condition that would permit the free and unobstructed passage of all water running through it within the corporate limits of said defendant, and carry all of said water safely in said ditch without overflowing or escaping therefrom,"

and in paragraph numbered "7" that:

"the defendant, wholly unmindful of its said duty and in utter disregard thereof, negligently and carelessly maintained its said ditch and permitted it to be or become in such condition that it failed to carry the said water without escaping therefrom and entering and flowing upon the premises of this plaintiff."

Defendant's answers denied that "the Defendant's negligence in any way caused the flood or contributed to the alleged damages" to the plaintiffs as set forth in their petitions. These answers also alleged:

"That the rain, snow or flood that occurred on or about the 22nd day of January, 1943, was an unprecedented amount that could not be anticipated and came in such quantities as to be an act of God."

The foregoing excerpts from the pleadings of the parties will, we think, supply a reasonably accurate concept of the issues to be determined on the facts appearing in the record before us.

Where the assignments of error were similar to those described above, this court in Willis vs. Willis, 48 Wyo. 403 429, 49 P.2d 670, said that: "In this connection it must be borne in mind that the appellate court must assume that the evidence in favor of the successful party is true, leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every...