Richland County v. Anderson, 9252

• Decision Date: 12 December 1955
• Docket Number: No. 9252,9252
• Citation: 291 P.2d 267,129 Mont. 559
• Parties: RICHLAND COUNTY, a body politic, Plaintiff and Respondent, v. S. A. ANDERSON and Florence V. Anderson, Defendants and Appellants.
• Court: Montana Supreme Court

Page 267

291 P.2d 267

129 Mont. 559

RICHLAND COUNTY, a body politic, Plaintiff and Respondent, v. S. A. ANDERSON and Florence V. Anderson, Defendants and Appellants.

No. 9252.

Supreme Court of Montana.

Submitted Feb. 23, 1955.

Decided Dec. 12, 1955.

Leavitt & Lucas, Miles City, for appellants. W. B. Leavitt, Miles City, argued the case orally.

J. C. Cottingham, Sp. County Atty., Sidney, Roland V. Colgrove, Miles City, argued the case orally for respondent.

DAVIS, Justice.

This is an appeal by S. A. Anderson and Florence V. Anderson, the defendants below, from an adverse judgment in favor of the plaintiff and respondent Richland County entered upon the verdict of a jury which awarded damages amounting to $27,473.33. Twenty-eight errors are specified and argued by counsel for these appellants as grounds for the reversal of this judgment. Hereafter we shall refer to the parties as they appeared in the district court.

The errors specified present for our consideration three general questions:

(1) Whether the complaint states facts sufficient to constitute a cause of action against either defendant;

(2) Whether the evidence is sufficient to support the verdict and judgment against (a) Florence V. Anderson, and (b) S. A. Anderson, her husband;

(3) Whether the trial court was in error (a) in giving over the objection of the defendants, and (b) in refusing upon the offer of the defendants, certain instructions to the jury upon the law of the case.

The facts disclosed by this record are substantially the same as those in the companion case of Farmers Union Oil Company v. Anderson, No. 9461, Mont., 291 P.2d 604. They will not be restated here; but as other matters pertinent to this appeal become relevant note will be made of them in the course of the opinion which follows.

(1) The complaint is sufficient. The specifications of error to the contrary are without merit. Initially it appears that the defendants each challenged this complaint by demurrer, one of the grounds of which was that a cause of action was not stated. These demurrers were however both withdrawn without a ruling by the lower court. Thereafter the case went to trial without objection by either defendant to the introduction of evidence under this complaint and without objection likewise that any evidence offered was inadmissible under its allegations.

The first ruling below upon the sufficiency of this pleading was made when the defendant, Florence V. Anderson, moved for a nonsuit. Her motion was denied; but this denial came too late to present the question whether the complaint stated a cause of action; i. e., if when this motion was made, the evidence itself made out a cause of action against her. For, if so, the complaint must be deemed amended to conform to the proof; and against her husband also, who challenged its sufficiency not at all. State ex rel. Olsen v. Sundling, Mont., 281 P.2d 499; Bennett v. Dodgson, Mont., 284 P.2d 990; Donich v. Johnson, 77 Mont. 229, 258, 259, 250 P. 963; Bray v. Cove Irrigation District, 86 Mont. 562, 566, 567, 284 P. 539. In short if the plaintiff's proof makes a case, the complaint, which is amended thereby, will be taken to state that case for the purpose of this appeal against both defendants.

(2) We turn then next to the evidence to determine whether the plaintiff did in truth make out a case for the jury. As against Mrs. Anderson we think it did, and that her specifications of error to the contrary are not to be sustained.

The record is not clear precisely when Mrs. Anderson took possession of the upper Anderson dam and reservoir, which broke on March 26, 1951, and which is the foundation of the plaintiff's claim for damages. It does appear moreover in this connection that at the time of this break a tenant, one Clifford Jensen, was farming the Anderson ranch upon a crop share basis under a verbal lease from Mrs. Anderson.

There is however no dispute on this record or between the parties and their counsel that when the upper dam broke Mrs. Anderson was herself in the actual possession and control of both that dam and the reservoir behind it, and was responsible for the repair and maintenance of these structures. The tenant Jensen had neither possession nor control. For their repair and maintenance he was charged with no responsibility. Such was the theory upon which the case was tried in the district court, concurred in by the plaintiff, the defendants and the counsel for both. Such then is the case which we shall review.

Thus viewed we think the evidence is sufficient to sustain findings by the jury:

(a) That the upper dam with its spillway as it was enlarged in 1947 and 1948 by August Vaux, Mrs. Anderson's father from whom she took title in July 1949, was not reasonably safe for the storage of the water impounded thereby in the reservoir behind it, and accordingly involved an unreasonable risk of harm to persons and property below on Lone Tree Creek;

(b) That when Florence V. Anderson took possession of this dam and reservoir sometime after July 1949 and before March 26, 1951, she would have known of the dangerous condition thus created by these structures and of the risk of a break involving injury to others, including the plaintiff county, if she had had a reasonable inspection made for her by a person skilled in such matters;

(c) That because she did not have such an inspection made, and accordingly did not acquaint herself with the danger inherent in this dam and reservoir, she was guilty of negligence, specifically in using these structures after she came into possession and control; or, what is the same thing, that in the exercise of ordinary care she would have known that the upper dam and its spillway were negligently constructed as the evidence tends to prove and accordingly would not have used this dam and reservoir until they had been made secure; and

(d) That her negligence here was a proximate cause of the break and flood of March 26, 1951, which damaged the plaintiff's property.

On the other hand we think the evidence is not sufficient to sustain a finding that Mrs. Anderson was negligent in any other particular, and that the case as tried below was in fact put to the jury upon the theory of her liability as we have outlined above the controlling issues of fact, which we find in the record.

We have in Montana no case precisely in point. But authority elsewhere directly sustains the conclusion which we reach upon the sufficiency of the case against Mrs. Anderson. Restatement, Torts (Negligence), § 364, pp. 987-991; § 366, pp. 993-995; Frederick v. Hale, 42 Mont. 153, 112 P. 70; Walsh v. East Butte Copper Mining Co., 66 Mont. 592, 214 P. 641; Dover v. George Power Co., 46 Ga.App. 630, 168 S.E. 117; Carlson v. A. & P. Corrugated Box Corp., 364 Pa. 216, 72 A.2d 290.

Of course the impounding of water for the irrigation of the Anderson ranch was a public use. Constitution of Montana, Art. III, § 15; Donich v. Johnson, supra. Certainly neither the original construction and subsequent enlargement of the upper dam here in issue nor the use of that dam and the reservoir behind it, particularly by Mrs. Anderson, was a nuisance, but to the contrary a lawful undertaking. Jeffers v. Montana PowerCo., 68 Mont. 114, 217 P. 652. Mrs. Anderson was not an insurer against all damage which under any circumstances might be occasioned by this reservoir and dam. Jeffers v. Montana Power Co., supra; King v. Miles City Irrigating Ditch Co., 16 Mont. 463, 41 P. 431, 50 Am.St.Rep. 506; Fleming v. Lockwood, 36 Mont. 384, 92 P. 962, 14 L.R.A.,N.S., 628, 122 Am.St.Rep. 375; Bray v. Cove Irrigation District, 86 Mont. 562, 284 P. 539.

She was however obligated in her use and maintenance of these structures after she came into possession and control to exercise reasonable care for the safety of the persons and property of others. Compare Fleming v. Lockwood, supra; Watts v. Billings Bench Water Association, 78 Mont. 199, 215, 218, 253 P. 260; Bray v. Cove Irrigation District, supra; Newman v. Bitter Root Irrigation District, 95 Mont. 521, 529, 530, 28 P.2d 195; Billings Realty Co. v. Big Ditch Co., 43 Mont. 251, 257, 261, 115 P. 828. Measured by this rule there is substantial evidence, as we have already said, upon which the jury may find Florence V. Anderson guilty of negligence. Here we do not intimate that the jury must make such a finding, and no other. The evidence upon the issue of negligence vel non is sharply conflicting. That evidence considered as a whole will clearly support a finding consistent with Mrs. Anderson's contention that she exercised due care. Compare United States v. Ure, 9 Cir., 225 F.2d 709. In short this issue if resolved by the jury for either party finds solid support in the record, which precludes this court from disturbing the verdict for want of evidence to sustain it. Burns v. Eminger, 81 Mont. 79, 261 P. 613; Pierce v. Safeway Stores, 93 Mont. 560, 20 P.2d 253; Wise v. Stagg, 94 Mont. 321, 22 P.2d 308; Cannon v. Lewis, 18 Mont. 402, 45 P. 572; Heckaman v. Northern Pac. Ry., 93 Mont. 363, 20 P.2d 258.

We conclude accordingly that we may not overturn the verdict and judgment against Mrs. Anderson upon the ground that no case is made out against her. Her motions for nonsuit and a directed verdict were properly denied.

As to the defendant, S. A. Anderson, the case is however otherwise. We shall assume, as the evidence tends to prove, that on occasion Mr. Anderson acted as agent for August Vaux, the owner of this reservoir and dam when these structures were built and enlarged, and also for the defendant, Florence V. Anderson, his wife, who took title from August Vaux in July 1949, and as owner was in possession and control at the time of the break on March 26, 1951, and for some time theretofore. We shall assume further that whatever Mr. Anderson did in connection with the upper dam, the reservoir there, and the Anderson ranch, while his wife was the owner,...