Rozell v. City of Anderson

• Decision Date: 26 November 1883
• Docket Number: 10,579
• Citation: 91 Ind. 591
• Parties: Rozell v. City of Anderson
• Court: Indiana Supreme Court

91 Ind. 591

Rozell v. City of Anderson

No. 10,579

Supreme Court of Indiana

November 26, 1883

From the Madison Circuit Court.

The judgment is affirmed, with costs.

C. L Henry and H. C. Ryan, for appellant.

M. S Robinson and J. W. Lovett, for appellee.

OPINION

Howk C. J.

Melvina T. Rozell, the plaintiff below, averred in her complaint in this action, that she was the owner of a certain lot in the city of Anderson, and occupied and had located on such lot a tan-house, tan and other vats, tan-bark mill, steam engine and boiler, and all the fixtures and machinery necessary for carrying on a tan-yard and manufacturing leather; and she sought to recover of the appellee, the city of Anderson, the alleged damages to her property, occasioned by an overflow of water upon such property by reason of the unskilful and negligent construction by the city of certain streets and culverts, and the unskilful and negligent putting in and maintaining by the city of insufficient and inadequate sewerage, and permitting the same to become and remain out of repair, and filled up and obstructed.

The cause was put at issue and tried by a jury, and a verdict was returned for the appellee, the defendant below, and over the appellant's motion for a new trial, the court rendered judgment in accordance with the verdict.

A number of errors are assigned by the appellant in this court; but her counsel say, in argument, that they "only desire to press upon the consideration of this court the second error assigned, to wit, the overruling of appellant's motion for a new trial." Under this alleged error, the appellant's counsel first directed our attention to two instructions, which the court gave the jury at appellee's request, and which counsel claim "are clearly contrary to the recognized law of Indiana, as laid down in repeated decisions of this court." These two instructions read as follows:

"First. Municipal corporations are not liable to individuals for judicial errors, although private rights may be injured thereby. Nor are such corporations liable to individuals for the exercise of their ordinary powers, however mistaken their policy may be, and although private injury may result therefrom.

"Second. If, therefore, you find that the streets, culverts and sewers complained of were made and constructed under and by order of the common council of said city, and that they were made in accordance with such order of said common council, in a skilful and careful manner, and were kept in repair by said city, then the plaintiff can not recover in her action, although said sewer and culverts were not of a sufficient capacity to perform the work for which they were intended, and although the improvement of said streets increased the flow of water over plaintiff's lot, and caused the injury, if any were caused, complained of."

Before considering these instructions, it may be premised that the evidence given in the cause is not in the record; but in the bill of exceptions, containing the instructions given, the court has certified that each and all of the instructions, so given to the jury, "were applicable to the evidence in the cause."

Section 650, R. S. 1881, provides what shall be deemed parts of the record, and what may be made parts of the record by a bill of exceptions, or an order of court, upon an appeal from the judgment below to this court. The body of the section is almost a literal copy of section 559 of the civil code of 1852, and has been the subject of judicial construction for the past thirty years. But the proviso in section 650 is new, and first became a part of the civil code in 1881. This proviso reads as follows:

"Provided, That when in any case an appeal is prosecuted upon the question of the correctness of instructions given or refused or the modifications thereof, it shall not be necessary to set out in the record all the evidence given in the cause,...