Tompkins v. Byrtus

• Decision Date: 09 March 1954
• Docket Number: No. 2613,2613
• Citation: 72 Wyo. 537,267 P.2d 753
• Parties: TOMPKINS et ux. v. BYRTUS et ux.
• Court: Wyoming Supreme Court

Page 753

267 P.2d 753

72 Wyo. 537

TOMPKINS et ux. v. BYRTUS et ux.

No. 2613.

Supreme Court of Wyoming.

March 9, 1954.

John F. Raper, Sheridan, for appellants.

H. Glenn Kinsley, Robert E. Holstedt, Sheridan, for respondents.

RINER, Justice.

This case is here by direct appeal proceedings from a judgment of the district court of Sheridan County. The action was brought by Gerald R. Tompkins and Winnie L. Tompkins, his wife, as plaintiffs, now appellants, against Mike F. Byrtus and Katherine Byrtus, his wife, as defendants who appear to be now regarded as defendants. Upon oral motion of counsel for appellants, Tompkins and wife, the court ordered the action dismissed against Mrs. Byrtus without prejudice. She did not testify as a witness in the case.

The action which plaintiffs brought in the district court aforesaid was one for damages which plaintiffs asserted they had suffered in the amount of $273.60 caused by water which flooded an apartment in plaintiffs' newly constructed tourist cabins in Sheridan in consequence of heavy rains which, through defendants' negligence, as plaintiffs assert, were allegedly diverted from their natural course of flow by the work and interference of the defendant, Byrtus. In plaintiffs' amended petition they in part alleged that: 'The Defendants herein constructed a dam at the lower end of their driveway which extended to the Southeast corner of Plaintiffs' newly constructed building, and as a consequence thereof, the normal and natural flow of the water drainage from Coffeen Avenue was dammed up and diverted directly into the door of Plaintiffs' lower level cabin which had just been completed and newly furnished; That, as a consequence thereof, about six or eight inches of water covered the entire floor of said cabin and the shower bathroom in connection therewith and remained on the floor of said cabin for a period of several hours before the agents and employee of the Plaintiffs herein discovered that said water had been diverted into said cabin; that the Plaintiffs herein at the time, were out of town and did not return until several hours after said damage had occurred.' Plaintiffs also claimed exemplary damages in the sum of $500. The defendants' answer to plaintiffs' amended pleading was in part: 'That the Plaintiffs have provided no drainage whatever for the protection of their said property from the water falling upon the higher elevations and flowing down from the streets and any damage sustained by the Plaintiffs from water drainage in time of rainstorm or otherwise from Coffeen Avenue, is due entirely to the Plaintiffs' own negligence and neglect in failing to provide necessary and proper drainage therefor and is in no wise due to any fault or wrongful acts of the Defendants.' Thereafter plaintiffs replied to defendants' answer, in part, that 'Plaintiffs specifically deny that the damage sued for and alleged in their amended Petition filed herein is in any manner due to their own negligence and neglect in failing to provide necessary and proper drainage therefor, as alleged in paragraph 3 of Defendants' Answer; that the damage complained of in their said amended Petition is due solely on account of the wrongful, unlawful and malicious acts of the Defendants by constructing the dam, as alleged in said Petition.'

The trial of the issues submitted by the parties was to the court with a jury in attendance; the jury having been demanded by the plaintiffs. After that body had been instructed by the court and arguments by counsel for the parties had been had, the cause was submitted to the jury which returned a verdict in favor of the defendants reading: 'We, the Jury, being duly impanelled and sworn to try the issues of the above entitled action, do find generally for the Defendants and against the Plaintiffs and that the Plaintiffs take nothing by this action. Done this 19 day of December, A.D. 1952.' The court thereupon entered a judgment upon this verdict which omitting preliminary statements and recitals was in terms as follows to wit: 'It is now, therefore, hereby ordered, adjudged and decreed by the Court that the Plaintiffs take nothing by this action and that Plaintiffs' Petition be dismissed at Plaintiffs' cost and that the Defendants have and recover judgment against the Plaintiffs and each of them for all of their costs herein taxed at $73.50.' From this judgment the instant appeal was taken.

There were some sixteen alleged errors assigned by plaintiffs and appellants but those numbered 1 to 5 inclusive and 7 appear to have been abandoned and a statement to that effect appears in appellants' brief. The errors argued are those numbered 6 and 8 to 16 inclusive.

Preliminary to argument in appellants' brief on the alleged errors which were not waived appellants' claim that the rules which this court has announced in Chandler v. Dugan, 70 Wyo. 439, 451, 251 P.2d 580, 584, and in many previous decisions to the effect that:

'In the making of an analysis of the evidence in this case we must do so in the light of the approved appellate practice of the various courts throughout this country and in accord with what this court has said in that regard many, many times. That is to say: 'In the first place, the credibility of the witnesses and the weight of their testimony are for the jury alone to determine.' Brown v. Wyoming Butane Gas Co., 66 Wyo. 67, 205 P.2d 116, 118. Then we must adhere to the rule set forth in Dulaney v. Jensen, 63 Wyo. 313, 181 P.2d 605, 606, where we: 'must assume that the evidence in favor of the successful party is true, leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may be reasonably and dairly drawn from it.''

are 'extremely harsh.' However this criticism is not to be regarded as of much weight when we find that 4 C.J. § 2836, pp. 857, 858, states that:

'Where the evidence is conflicting, the appellate court, in determining whether the evidence is sufficient to support a verdict, must assume that the evidence in favor of the successful party is true, leave out of consideration entirely evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may be reasonably and fairly drawn from it. And the rule is broadly stated in a great number of decisions representing nearly every court in America that the verdict or findings of a jury rendered on...