Oklahoma City v. Collins-Dietz-Morris Co.
| Decision Date | 14 June 1938 |
| Docket Number | 27681. |
| Citation | 79 P.2d 791,183 Okla. 264,1938 OK 410 |
| Parties | OKLAHOMA CITY v. COLLINS-DIETZ-MORRIS CO. |
| Court | Oklahoma Supreme Court |
Rehearing Denied July 5, 1938.
Syllabus by the Court.
1. Under Section 3206, O.S.1931, 22 Okl.St.Ann. § 1068, an appellate court is not authorized to set aside the judgment or grant a new trial in any case unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right.
2. While it is technically error, under Section 364, O.S.1931 12 Okl.St.Ann. § 582, for a trial court to return the jury to the court room for the purpose of answering questions requested by said jury in the absence of counsel or without notifying said counsel; however, where the record discloses that the entire proceeding occurred in open court and that the trial court, in answer to questions by the jury, merely directed attention to instructions previously given, it does not appear that such conduct resulted in any miscarriage of justice or constituted a substantial violation of the defendant's constitutional or statutory rights.
3. Where a party has been consequentially damaged by the construction of a public improvement, said party is entitled to recover compensation for such damages under the eminent domain provision of the constitution, Article 2, Section 24 Okl.St.Ann.Const. art. 2, § 24, irrespective of the question of negligence in the construction of said public improvement.
4. Consequential damages caused by a temporary condition which was created in the process of constructing a public improvement may be recovered under the eminent domain provision of the constitution, Article 2, Section 24 Okl.St.Ann.Const. art. 2, § 24.
Appeal from District Court, Oklahoma County; Clarence Mills, Judge.
Action by the Collins-Dietz-Morris Company against Oklahoma City to recover for damages to goods and merchandise occurring when basement of building occupied by plaintiff was damaged by waters allegedly diverted from their natural drainage by acts of the defendant in making a public improvement. Judgment for plaintiff, and the defendant appeals.
Affirmed.
A. L. Jeffrey, Municipal Counselor, and A. P. Van Meter and Leon Shipp, Asst. Municipal Counselors, all of Oklahoma City, for plaintiff in error.
Tomerlin, Chandler, Shelton & Fowler and John W. Swinford, all of Oklahoma City, for defendant in error.
This action was brought in the District Court of Oklahoma County by Collins-Dietz-Morris Company, a corporation, plaintiff in the trial court, defendant in error herein, against the City of Oklahoma City, a municipal corporation, plaintiff in error herein, defendant in the trial court, for damages. The parties will hereinafter be referred to as they appeared in the lower court. The plaintiff alleged that by reason of certain temporary conditions created by acts of the defendant in making a public improvement the surface storm waters following a severe rain were diverted from their natural drainage course in such a manner as to flood the basement of the building occupied by the plaintiff damaging certain goods and merchandise stored therein. Plaintiff alleged damages in the sum of $18,171.93, and the jury returned a verdict in favor of the plaintiff for the sum of $5,000. Thereafter defendant filed its motion for a new trial which the trial court denied and from that judgment this appeal is taken.
The plaintiff, a wholesale grocery company, occupied a certain brick building on the south side of West First Street in Oklahoma City west of and immediately adjoining the Santa Fe Railway right of way which runs north and south. There was no storm sewer along this right of way and by reason of the topography of the surrounding terrain the natural drainage of surface waters following a rain was south along both the east and west sides of the Santa Fe right of way; the tracks formed a barrier between the two drainage courses. For the purpose of ventilating the basement of said building there were a number of windows, the lower sills of which were approximately level with the adjoining sidewalk, and the plaintiff had constructed areaways around these windows, consisting of brick and waterproof mortar; these areaways rose about two feet above the level of the sidewalk and had been sufficient in the past to protect the plaintiff's basement from accumulations of surface waters following their natural drainage course heretofore described. However, on this occasion the water rose above these protective walls and entered the basement through the windows. The plaintiff contended on trial that the water rose above these areaways because the defendant in excavating a ditch for laying a sewer line on the east side of the Santa Fe right of way, north of First Street, had stacked up certain lumber and tools and thrown up a mound of earth diverting the surface waters that would have ordinarily flowed down the east side of the right of way across the railroad tracks to the west side thereof greatly increasing the amount of surface waters flowing on that side and this additional amount of water resulted in the flooding of plaintiff's basement.
In the petition filed herein the plaintiff based its cause of action upon negligence, but in the opening statement to the jury counsel abandoned this theory and proceeded to trial upon the theory that, irrespective of skill or lawfulness in performing this work, if the conditions created by the defendant in constructing this public improvement diverted the surface water into plaintiff's basement then the defendant was liable. Thus founding its action on the eminent domain provision of the constitution of this state. The defendant maintained that this was such an extraordinary rain that it was an act of God and the defendant was not liable for the consequences thereof, and raised several questions of law hereafter discussed.
The first assignment of error we shall consider is that the trial court erred in making certain remarks to the jury, in the absence of counsel, after submission of the case to the jury. It appears from the record that after the jury had retired to consider its verdict, and counsel for the defendant had left the court house, the jury was returned into open court where the foreman asked the court the following question after reading Instruction No. 8 which concerned the measure of damages:
"We want to know if we would be permitted to fix the amount of the damage, if any, at any figure we see fit, or are we restricted to the figures set up in the petition?"
The court replied in substance that the law as to the measure of damages was set forth in Instruction No. 8, that the petition was not evidence and that the jury was to fix the amount of damages, if any, in accordance with the evidence and instructions of the court, and further advised the jury that in making these remarks the court did not intend to intimate either what the verdict should be nor the amount of damages.
Defendant relies upon Section 364, O.S.1931, 12 Okl.St.Ann. § 582, which provides:
"After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed as to any part of the law arising in the case, they may request the officer to conduct them to the court, where the information on the point of law shall be given in writing, and the court may give its recollections as to the testimony on the point in dispute, or cause the same to be read by the stenographer in the presence of, or after notice to, the parties or their counsel."
In support of this contention defendant cites Osage Mercantile Co. v. Harris, 52 Okl. 78, 152 P. 408, and Roark v. McCutchan, 128 Okl. 186, 261 P. 938. In both these cases the trial judge went into the jury room and no record of the proceedings was made; however, in the case at bar the jury returned to open court and the entire proceeding is fully disclosed in the record.
While this was technically an error on the part of the trial court and one to be carefully guarded against, yet, after a careful examination of the entire record, it does not appear that it resulted in a miscarriage of justice or constituted a substantial violation of the defendant's constitutional or statutory rights. The court did not give any new instructions, but in substance merely directed the attention of the jury to instructions previously given.
Section 3206, O.S.1931, 22 Okl.St.Ann. § 1068, provides:
"No judgment shall be set aside or new trial granted by any appellate court of this State in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right."
See Woodard v. Sanderson, 83 Okl. 173, 201 P. 361; Sandusky Cement Co. v. Hamilton & Co., 6 Cir., 287 F. 609.
The defendant also assigns as error the refusal of the trial court to...
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