Lore v. Town of Douglas

• Decision Date: 16 September 1960
• Docket Number: No. 2921,2921
• Citation: 355 P.2d 367
• Parties: Valjean LORE, Vinson Merritt and Hettie Merritt, Appellants (Plaintiffs below), v. TOWN OF DOUGLAS, Wyoming, a Municipal Corporation, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 367

355 P.2d 367

Valjean LORE, Vinson Merritt and Hettie Merritt, Appellants (Plaintiffs below), v. TOWN OF DOUGLAS, Wyoming, a Municipal Corporation, Appellee (Defendant below).

No. 2921.

Supreme Court of Wyoming.

Sept. 16, 1960.

Rose, Rose & Fisher, Casper, for appellants.

Maurer & Garst, Douglas, for appellee.

Heard before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Justice PARKER delivered the opinion of the court.

Plaintiffs, the owners and operators of a frozen food locker plant, sued the Town of Douglas, seeking an injunction and claming damages which resulted to them in the flooding of their basement when the town flushed adjacent sewer lines. Defendant admitted the existence of the municipal corporation, plaintiffs' ownership and management of the locker plant, and the town's flushing operations but denied other allegations and pleaded that the complaint failed to state a claim and that the flushing of the sewer system was a governmental function, the town, therefore, being exempt from liability. ¹ The court found generally for the defendant and entered judgment from which plaintiffs have appealed.

The case presents many difficulties, not the least of which are the inadequacies of the pleading. Plaintiffs' allegations of negligence were casual and general in the extreme. The complaint alleges the existence of the defendant as a Wyoming municipal corporation, that the plaintiffs were owners and operators of the locker plant, and continues:

'3. That on or about September 12, 1954, September 21, 1956, May 14, 1957 and June 28, 1957, the defendant, by and through its agents and employees, was engaged in operations consisting of flushing the sewer lines situated in the area of the said concern known as Douglas Frozen Food and Lockers, by way of highly pressurized water being forced into said sewer lines.

'4. That although it was fully aware as to the resultant consequences of such method of flushing sewer lines, or should have been aware of same, the defendant on the said dates and without any notice whatever to the plaintiffs, carried on such operations which proximately resulted in sewage water being forced up through the drain in the basement in the plaintiffs' aforementioned property and business concern which proximately caused property damage to the plaintiffs as hereinafter designated.

'5. That said operations by the defendant were not only negligent, careless and reckless but also constituted a public nuisance because of the frequency of occurrence and because of being carried on without absolutely no notice being given before such operations were commenced.'

There follows a statement that the claim was presented to the town and neither allowed nor rejected for a period of twenty-eight days.

It is well settled that in stating a cause of action in tort founded upon negligence that:

'* * * the complaint must * * * disclose either directly or by necessary or unavoidable inference, a primary right on the part of the plaintiff and a corresponding duty on the part of the defendant, and a breach of such duty * * *.' 1 Bancroft's Code Pleading, 1926, p. 173.

See 63 C.J.S. Municipal Corporations § 934d. See also Prosser, Torts, 2d ed., p. 165; 2 A.L.I. Restatement, Torts, 1934, §§ 281, 282; 2 Harper and James, Law of Torts, 1956, pp. 896, 897; and Price v. State Highway Commission, 62 Wyo. 385, 167 P.2d 309, 312. The Federal rules have not changed this principle. 1A Barron and Holtzoff, Federal Practice and Procedure, rules ed. 1960, p. 119.

The complaint in the present case falls far short of compliance with this rule. In fact, there is not even a recitation of the town's status as to the construction or maintenance of a sewer system, let alone any allegation of duties or rights of the parties. Neither does the pleading conform to the principle established in Savage v. Town of Lander, 77 Wyo. 157, 309 P.2d 152, 154, by stating facts showing the alleged negligence to have been committed in the performance of a proprietary function.

In discussing the complaint, we should, perhaps, not overlook the fact that plaintiffs therein alleged defendant's operations to have 'constituted a public nuisance' and now argue that the town's activities are additionally a private nuisance. It is significant to observe that there was no attempt in the complaint to state whether the 'nuisance' was the basis for damages or for injunction. In any event, we doubt if the mere characterization of the activities as a 'nuisance' can change the nature of plaintiffs' right to relief which depends upon defendant's failure to exercise reasonable care. ²

Notwithstanding the fatal defects in the complaint, the defendant here elected under the sixth defense of Rule 12(b), Wyoming Rules of Civil Procedure, to raise such defects by answer rather than motion. This course carried with it the possibility that subsequent pleadings ³ and evidence admitted without objection might effect an amendment of the complaint. ⁴ See 71 C.J.S. Pleading § 591; 41 Am.Jur. Pleading § 309.

Bearing this principle in mind, we review the record to see what changes in the complaint may have been effected by the answer and testimony. As to the pleadings, defendant alleged among other things that the town, as a governmental function, constructed a sewer system and thereafter maintained it, being obligated to wash and flush for proper operation. As to the evidence, one of the plaintiffs although not shown to be qualified on the subject testified that the cause of the flooding was 'too much water in the line so it couldn't get out. The pressure was too great coming up. There isn't enough adequate space in the line to take any pressure. Too much gravel in it.' A plumber acquainted with the drainage in the plant basement and the general situation of the sewer system testified, 'the cause of the flooding was a clogging back behind the line that goes into the main sewer * * * it fills up with sand * * * from * * * wash racks.' Various plaintiffs testified that notice of the flushings was not given by the town prior to the floodings in question. Witnesses for the town testified that the municipality had had difficulty in the operation of the sewer system, especially in the area of plaintiffs' property and caused interceptors to be installed by every filling station and garage, had taken pains to have a sewer map made, and had flushed the sewer from the lower manhole upward. They said the town officials and employees had given notice to all sewer users prior to each flushing.

This evidence and the mentioned portion of defendant's answer presented the issues upon which the case was tried. We are cognizant of the reluctance of appellate courts to assume or permit an amendment to conform the pleadings to the proof for the purpose of reversing a judgment otherwise correct. Brokaw...