The City of Kansas City v. King

• Citation: 65 Kan. 64,68 P. 1093
• Decision Date: 10 May 1902
• Docket Number: 12,625
• Parties: THE CITY OF KANSAS CITY v. JAMES KING
• Court: United States State Supreme Court of Kansas

68 P. 1093

65 Kan. 64

THE CITY OF KANSAS CITY v. JAMES KING

No. 12,625

Supreme Court of Kansas

May 10, 1902

Decided January, 1902.

Error from Wyandotte court of common pleas; W. G. HOLT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CITIES AND CITY OFFICERS -- Damage from Sewer -- Limitation of Action. The rule of King v. City of Kansas City, 58 Kan. 334, 49 P. 88, followed, and it is held, that a cause of action did not accrue in favor of K against the city until the sewage and water had been backed through the sewers and precipitated upon his property.

2. CITIES AND CITY OFFICERS -- Immaterial Amendment to Petition. An amendment to the petition that one of the plaintiffs, originally alleged to be an owner, had no interest in the property injured, was not material and did not change the cause of action, since, under the code, judgment may be given for or against one or more of several plaintiffs.

3. CITIES AND CITY OFFICERS -- Sewers -- Provisions against Floods. In the construction of sewers emptying into a river a city is not required to provide against phenomenal floods which are beyond reasonable anticipation, but it is required to guard against floods such as have occasionally occurred and which may be reasonably expected to occur again, and, failing to make such provision, it is liable for the consequences of its negligence.

4. PRACTICE, DISTRICT COURT -- Request for Instructions. A request for special findings, made after the court had announced its findings, overruled the motion for a new trial, and entered final judgment, came too late, and no error was committed in refusing such request.

T. A. Pollock, city counselor, and M. J. Reitz, city attorney, for plaintiff in error.

Sutton, Maher & Sutton, for defendant in error.

JOHNSTON J. DOSTER, C. J., ELLIS, J., concurring.

OPINION

JOHNSTON, J.:

In 1897 this case was before us, and it was then determined that the city was answerable to residents for damages resulting from the precipitation of sewage and river-water upon their premises. (King v. City of Kansas City, 58 Kan. 334, 49 P. 88.) That holding was based on the averments of the petition that the sewers were so low that when a freshet occurred the water and sewage were backed up on the premises of the plaintiff, causing great injury. The alleged negligence of the city was the failure to provide suitable flood-gates with which the. mouths of the sewers could be closed during a rise of the river. At the second trial of the case the averments of the petition were well sustained by the testimony produced, and the jury found that in 1892 the sewage was backed up through the manholes and catch-basins of the sewer by high water, and that it could have been avoided by placing flood-gates over the mouths of the sewers. The lack of flood-gates was the only negligence alleged, and that is the negligence upon which the verdict and judgment are based.

A number of errors are assigned, which will be briefly noticed. When the cause was remanded for a second trial the petition was amended by striking out the averment that Nina King was the owner of the property injured. In the original petition it was alleged that James King and Nina King were the owners of the property, and, as the amendment was made after the statutory period for bringing such an action had expired, it is argued that the amendment introduced a new cause of action which was then barred. The amendment did not introduce a different cause of action, and it was, in fact, immaterial. The fact that the Kings sued jointly does not require that there shall be a joint recovery or none at all. The common-law rule was that the several plaintiff's in an action must all recover jointly or all utterly fail, but our code, section 396 (Gen. Stat. 1901, § 4845), provides that "judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants." If no amendment had been made, and the proof had shown that James King owned the entire interest in the property and had sustained the entire loss, he would have recovered for that loss. (Hurd v. Simpson, 47 Kan. 372, 27 P. 961.) The fact that Nina King, impleaded with him, had failed to establish the right of recovery would not affect his right to recover for the actual damages sustained by him, and, hence, the amendment was unnecessary and immaterial and did not change the cause of action.

The cause of action arose in favor of the plaintiff below when the overflow occurred and the injury was inflicted. The complaint made was not against...