Oklahoma City v. Bethel
| Decision Date | 11 June 1935 |
| Docket Number | 23575. |
| Citation | 51 P.2d 313,175 Okla. 193,1935 OK 667 |
| Parties | OKLAHOMA CITY v. BETHEL et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Sept. 10, 1935.
Application for Leave to File Second Petition for Rehearing Denied Dec 3, 1935.
Syllabus by the Court.
1. In an action for damages to premises caused by the wrongful construction of a storm sewer by a city, causing the overflow of premises which did not theretofore overflow where it is conceded that the conditions are susceptible to remedy by the expenditure of money and labor, the proper measure of damages, where the property is capable of being repaired, is the reasonable and necessary cost of placing the premises in as good state of repair as before the injury, together with the reasonable value of the use of the premises for such time as is reasonably necessary to make the repairs, plus the reasonable value at the time and place of such personal property as may be totally destroyed.
2. In no case may a plaintiff recover the full difference in value of real property flooded by the wrongful construction and maintenance of a storm sewer by a municipality just prior to and just after the injury, and also recover for the loss of the use of said premises.
Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.
Action by A. P. Bethel and others against Oklahoma City. Judgment for plaintiffs, and defendant appeals.
Judgment reversed and cause remanded for a new trial.
W. H Brown, Municipal Counselor, and Harlan T. Deupree and A. P Van Meter, Asst. Municipal Counselors, all of Oklahoma City, for plaintiff in error.
Shirk, Danner & Earnheart, of Oklahoma City, for defendants in error.
This is an appeal from a judgment in favor of defendants in error, herein referred to as plaintiffs, in an action to recover for and on account of damage caused by an overflow of plaintiff's premises from a storm sewer constructed by defendant city.
In the latter part of 1929, the city constructed a storm sewer of large dimensions designed to drain a considerable area in the northeast part of the city.
The storm sewer was made to open into an open ditch at Tenth street and Eastern avenue. Said ditch runs along the south side of the road east towards the North Canadian river, and to a short distance west of the Missouri Kansas & Texas Railway roadbed on the west side of the river. There it runs diagonally across the road under a culvert and thence east through a culvert under the railroad track and on to the river.
Plaintiffs owned and operated an amusement park for colored people, known as "Forest Park" and located on a small tract of land on the north side of the highway and west side of the railroad north of the northeast part of the fairgrounds. Plaintiffs had constructed thereon several buildings, the principal one being a dance pavilion, and in connection therewith had and operated a number of amusement devices such as a "Merry-go-Round," "Shooting Gallery," and a "Miniature Train," and others as are usually found at amusement parks.
Plaintiffs alleged in substance that the city wrongfully, unlawfully, and negligently constructed said storm sewer so as to collect the surface water from a large area in great volume and abruptly terminated said sewer so as to empty the water into an inadequate open ditch in such a way that the surface water collected from usual hard rains would completely overflow plaintiff's premises; that a proper construction would have been to continue the underground sewer on east about one-half mile to the river; that the city failed to construct embankments or levees along the banks of said open ditch so as to prevent an overflow therefrom; that on several occasions, after the construction of said sewer, the premises had been flooded from said ditch, whereas before the construction of the sewer said premises did not overflow; that on or about June 14, 1930, a rain of about 3.95 inches, such as may be frequently expected, fell in said drainage area, causing an overflow and flooding of plaintiff's premises to a depth of from 32 to 60 inches, and 11 inches above the floor of the main building, which also filled and flooded the basement under said building, damaged and destroyed the equipment and property stored therein, greatly injuring and damaging the buildings, material, machinery, and equipment; that the flood carried away doors, lumber, and other property, washed gulleys in the land, and deposited thereon a large amount of sand and other débris, all to their damage in the sum of $4,930.36.
As a second cause of action, they further alleged that during the summer season of 1929, from April to October, they had operated said amusement park at a net profit of $4,041.36; that by reason of the said flood the dance floor was warped and made rough and uneven, and because of the destruction of other amusement, and the general dilapidated appearance of the premises caused by said flood, plaintiffs, although they tried to operate said park, were unable to do so at a profit, and they were therefore damaged by way of loss of profits in the sum of $4,041.36. By a third cause of action they alleged an apparent intention to continue the alleged nuisance, and prayed for injunctional relief, and for total damages on their first and second causes of action in the sum of $8,971.72.
Defendant answered by general denial and further alleged in substance that all the premises involved had for a long time been known to be subject to overflow, and that the buildings and other property located thereon were placed upon land long known to be subject to overflow, and that plaintiffs failed and neglected to exercise reasonable care to protect their property from overflow; that there was no negligence on the part of the city in the construction, location, maintenance, and operation of its storm sewers; that the damage, if any, to plaintiffs' property was caused by insufficient openings under the Missouri Kansas & Texas Railway which caused the water to back up and over plaintiffs' premises.
Reply was by general denial.
One Bert Shepherd owned and operated an agricultural lease on lands adjoining the amusement park, which was also flooded by the same alleged cause. He filed an action against the city for damages. The two cases were tried together to a jury resulting in verdicts in favor of the plaintiffs Bethel et al. in the sum of $3,154.76, and for plaintiff Shepherd in the sum of $243.75. Separate appeals are prosecuted by the city.
There are some twenty-two assignments of alleged error, most of which are without substantial merit.
The assignments of error are combined and submitted under five separate propositions. The first is that the court erred in rendering judgment on the verdict returned, as it is not sustained by the evidence.
Defendants do not seriously contend that under the pleadings and evidence plaintiffs were not entitled to recover anything. Defendant says in its brief that in all fairness, taking plaintiffs' evidence at its strongest, no damages were proven in excess of $500. With this we cannot agree. Taking plaintiffs' evidence at its strongest, the damage proved would exceed the amount of the verdict. True the evidence on some of the items was somewhat vague and incomplete. Witnesses were permitted to state their estimate of the cost of repairs of certain equipment used in the business, without stating that such would be the reasonable and customary charge for such work or repairs. Much of the evidence along these lines was admitted...
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