Stegall v. City of Chattanooga

• Decision Date: 14 September 1932
• Citation: 66 S.W.2d 266
• Parties: STEGALL et al. v. CITY OF CHATTANOOGA et al.
• Court: Tennessee Supreme Court

66 S.W.2d 266

STEGALL et al. v. CITY OF CHATTANOOGA et al.

Court of Appeals of Tennessee, Eastern Section.

September 14, 1932.

Certiorari Denied by Supreme Court February 14, 1933.

Appeal from Circuit Court, Hamilton County; Oscar Zarnell, Judge.

Five suits by R. M. Stegall and others against the City of Chattanooga and another. From a judgment for defendants, some of the plaintiffs appeal.

Affirmed.

C. W. K. Meacham and R. E. L. Cooke, both of Chattanooga, for plaintiffs in error.

J. W. Anderson and Eugene Tatum, both of Chattanooga, for City of Chattanooga, and C. J. Lynch, of Chattanooga, for Hamilton County.

PORTRUM, Judge.

This appeal represents five suits tried together, and originally instituted by five plaintiffs against Hamilton county and the city of Chattanooga, successor to the suburban municipality of North Chattanooga, for damages to abutting property on Crewdson street, formerly a street in the municipality of North Chattanooga, but now a street in the city of Chattanooga, and growing out of a changed grade in the establishment of a sidewalk improvement district by the municipality of North Chattanooga. Some months after the institution of these suits, three of the plaintiffs' wives joined with their husbands as parties plaintiff by amendment. The cases were heard together before the court and a jury, and at the conclusion of the plaintiffs' proof the court directed a verdict in favor of Hamilton county, but overruled the motion for the city. At the conclusion of all the evidence the city renewed its motion for a directed verdict, and the court, upon consideration, granted it, and directed the jury to return a verdict in favor of the defendants. The plaintiffs filed motions for a new trial, and have appealed to this court. Counsel have consolidated their assignments of error in this court, assigning errors applicable to the original plaintiffs, and to the parties made plaintiffs by amendment, and to the action of the court in directing a verdict against the county. We will dispose of the appeals in the same order.

The declarations allege that the plaintiffs were the owners of the property described therein, abutting on Crewdson street, a street owned and controlled by the defendant Hamilton county, and within the territory of the town of North Chattanooga, a municipal corporation in Hamilton county; that within twelve months the county, town, and city of Chattanooga had begun, continued, and completed excavating, surfacing, paving, and improving said street at a new grade, reducing the grade from twelve to thirteen feet below the old grade, thereby creating and leaving a high, steep, and precipitous bank along the front of said property, et cetera; that in October, 1929, the city of Chattanooga annexed the territory of North Chattanooga, including the said street, and assumed, and became legally bound for, all obligations of the town, and joined in the improvements of said street. Therefore the plaintiff sued for $10,000 in damages, et cetera.

The defendant Hamilton county filed pleas of "Not guilty" to all the declarations; and the city of Chattanooga likewise filed pleas of "Not guilty," and also special pleas, reading as follows:

"Comes the defendant, City of Chattanooga, Tennessee, through its attorney, and for further pleas to the declaration filed against it in this cause says that plaintiffs petitioned the Highway Commission of Hamilton County, Tennessee, to establish a grade on Crewdson Street and release said County from all damages on account of said change of grade, said petition being as follows:

                    "`North Chattanooga, Tennessee
                                 "`February 15th, 1929
                "`To the Highway Commission of Hamilton
                   County, Tennessee
                

"`We, the undersigned property owners, respectfully petition you to build and construct Crewdson Street, beginning at Orr Street and extending to Tremont Street.

"`We, agree that the County Engineer of Hamilton County, Tennessee, may establish the street grade on said street, and we release the County of Hamilton from all and any damage that our property may suffer by reason of changing the present grade and establishing a permanent grade on said street.'

"The above petition was signed by the plaintiff, stating that he was the owner of one hundred feet on said Crewdson Street.

"Plaintiff also petitioned the Commissioners of the Town of North Chattanooga, asking that said grade be established, and said petition being as follows:

                    "`North Chattanooga, Tennessee
                                 "`September 24, 1927
                "`To the Commissioners of the Town of
                   North Chattanooga, Tennessee, in Hamilton
                   County, Tennessee.
                

"`The undersigned property owners respectfully petition you to establish a sidewalk on Crewdson Street, north of Orr Street, and connect same with Tremont Street.

"`We agree that the County Engineer of Hamilton County, Tennessee, may establish the sidewalk on said street, and we release the County of Hamilton and the Town of North Chattanooga from all and any damage that our property may suffer by bringing said street to a sidewalk grade.'

"The above petition and release were signed by plaintiff, showing that he owned one hundred feet. The grade of said street as changed was fixed by the County Engineer according to the petition of plaintiff and others, and plaintiff therefore released the Town of North Chattanooga and its successor, the City of Chattanooga, from all damages on account of the change of said grade."

The original plaintiff did not traverse this plea by a general denial, but filed a replication as follows:

"Plaintiff, for replication to the first special plea of the defendant, City of Chattanooga, Tennessee, says the instruments set out therein and relied on are not binding and effectual.

"(a) Nor that the change of grade on Crewdson Street along the front of his property, approximately five feet below the surface level to approximately seventeen feet below, was unreasonable, constituted the taking of his property without compensation, and was not understood and contemplated by him at the time of signing said instrument, since defendant, and the town of North Chattanooga failed to furnish him any plat, drawing or specification, as was usual and customary in such cases, showing the improvements to be made, the new grade to be established, and the damage that would be done to said property; and failed otherwise to acquaint him with definite facts necessary to enable him to form correct conclusions as to the extent of his waiver;

"(b) For that, as soon as he and other property owners on said Crewdson Street discovered that defendants were excavating far below the original grade of said street and in the process of establishing a new grade below the old grade, so as to seriously damage their property, they protested, and threatened to enjoin further operation; thereupon, defendant, and the Town of North Chattanooga, promised and agreed to establish a grade not lower than nine feet below the surface of said lot, and, trusting to said new agreement, this plaintiff, and others, allowed the work to proceed. Said new agreement thereby superseded and abrogated the old agreement, and the establishment of a new grade lower than nine feet below the surface of the lot was a violation of that agreement, and the taking of the plaintiff's property;

"(c) For that, in signing said instrument plaintiff had in view and expected his property to be improved and be benefited thereby, and did not contemplate a changed grade that would damage and destroy his property. Therefore, said instruments were without consideration, and are not binding on him."

The defendant city of Chattanooga, for rejoinder to the replication, said:

(a) Plaintiffs knew a lower grade would be necessary on account of the steep hill, and that they agreed thereto because the grade was made by the county engineer.

(b) That plaintiffs did not make a new agreement with the town of North Chattanooga which abrogated the old agreement, and that any verbal agreements with any unauthorized person was not binding on defendant.

(c) That plaintiffs, in signing said instruments, agreed to the grade as made, because said instruments were in writing, and authorized the defendants to have the county engineer establish the grade, which was done.

These pleadings present the issues upon review here on the appeal of the original plaintiffs. It is conceded that the change of grade of this street damaged the property of the plaintiffs, but it is insisted that this change of grade was anticipated by the plaintiffs, and the damage waived as an inducement to the city to make the improvement. If the plaintiffs are not bound by their solemn written agreements, then they are entitled to recover the damages sustained by their property by the lowering of the grade against the city, and the court erred in directing a verdict against them; on the other hand, if the written instrument is binding against them, there was no error in directing a verdict in favor of the defendant. The assignments of error are numerous and long, but we think we can best dispose of them by setting them out in detail, or the most of them, and disposing of each in turn, The first assignment reads:

"The Court erred in sustaining the motion of defendant City of Chattanooga for a directed verdict at the close of all the evidence, and in directing the jury to return a verdict in favor of said defendant (R., 22, 52, 80, 109, 136).

"This was error:

"(a) Because there was no evidence to support the verdict;

"(b) Because the waiver agreements (R. 11, 12), set up by the special plea of defendant City of Chattanooga, were not valid and binding, and do not bar recovery of damages sustained by plaintiffs;

"(c) Because the purported waiver agreements were never accepted by the Town of North Chattanooga, the grades were never established by the County Engineer, and the work was not done pursuant thereto;

"(d) Because the...