White v. City of Springfield

• Decision Date: 12 March 1915
• Citation: 173 S.W. 1090,189 Mo.App. 228
• Parties: E. L. WHITE and STELLA R. WHITE, Respondents, v. CITY OF SPRINGFIELD, Appellant
• Court: Missouri Court of Appeals

173 S.W. 1090

189 Mo.App. 228

E. L. WHITE and STELLA R. WHITE, Respondents, v. CITY OF SPRINGFIELD, Appellant

Court of Appeals of Missouri, Springfield

March 12, 1915

Appeal from Greene County Circuit Court.--Hon. Guy D. Kirby, Judge.

Judgment reversed and cause remanded.

Fred A Moon for appellant.

(1) The two counts are inconsistent. Each denies the other. The first alleges, that the acts were the acts of the city, that is were authorized by valid ordinances; while the second count states that the acts were not the acts of the city, by stating that they were done under void and pretended resolutions or ordinances, or contracts. (An act to be that of the city, must have been authorized by a valid ordinance. Bigelow v. City of Springfield, 162 S.W. 750). Where proof of one count necessarily disproves the other, the two counts are inconsistent. Enterprise Soap Works v. Sayers, 51 Mo.App. 310; Suter v. Bischoff, 63 Mo.App. 157. And where two counts are inconsistent, it is prejudicial error for the trial court to refuse to require plaintiff to elect. Enterprise Soap Works v. Sayers, 51 Mo.App. 316. (2) The court committed reversible error in refusing to sustain appellant's objection to the introduction of any evidence on the ground, that the petition did not state a cause of action. The two counts denying each other, one destroys the other. Gabriel v. Railroad, 130 Mo.App. 654; Sherman v. Rockwood, 26 Mo.App. 403; McKee v. Cottle, 6 Mo.App. 416; England v. Denham, 93 Mo.App. 13; Adams v. Trigg, 37 Mo. 141. (3) The damage, if any, to respondents' property, was caused by and resulted from a defective plan or scheme of improvement, for which a city is not liable. Foster v. St. Louis, 71 Mo. 157; Stewart v. Clinton, 79 Mo. 611, 612; Hines v. Marshall, 22 Mo.App. 214; Hays v. Columbia, 141 S.W. 3; Gallagher v. Tipton, 112 S.W. 674; McGrath v. St. Louis, 114 S.W. 611. (4) The work was done by the independent contractor Koch, hence, any negligence in the construction thereof was the negligence of an independent contractor, for which negligence the city is not liable. McGrath v. St. Louis, 215 Mo. 191.

O. T. Hamlin for respondents.

(1) The court committed no error in overruling the motion seeking to require an election by respondents. This motion was too late. The answer of appellant was filed on the 18th day of September, 1913, and had never been withdrawn, but still of record on the 11th day of March, 1914, when this motion was filed and overruled. The motion was waived by answer and could not be considered as long as the answer remained of record. Paddock v. Somes, 102 Mo. 226. (2) The counts were not inconsistent.

FARRINGTON, J. Robertson, P. J., and Sturgis, J., concur.

OPINION

FARRINGTON, J.

--The plaintiffs own a lot in the city of Springfield, Missouri, facing south fifty feet in width on Division street, and one hundred and eighty feet lengthwise on Broad street, on which they have a storehouse and a dwelling house fronting on Broad street.

The defendant is a city of the third class.

Plaintiffs recovered a judgment against defendant in the sum of $ 550 as damages alleged to have been occasioned by reason of the defective construction of a cement pavement on Broad street. The jury returned a verdict for $ 900, but a remittitur of $ 350 was entered by plaintiffs and the court overruled defendant's motion for a new trial.

The suit was originally brought against the city and V. E. Koch, the contractor who put in the improvement, but was dismissed as to Koch and judgment went only against the city.

The recovery is based on a petition which charged that "in the construction of said roadway and curbing, the defendants negligently and carelessly caused same to be flat or even on the west side of Broad street between Locust and Division streets to such an extent that the water would not run off of said street between said points, but stood in pools and ponds and became stagnant and foul; that by reason of the negligent construction of the improvements aforesaid, and the change in the grade of said street by defendants, surface water from various sources was collected and conveyed on said street in front of the property of plaintiffs and there collected whereas prior to said improvements no surface water collected or remained at plaintiff's property. . . . And that said curbing and paving along the entire length of said lot was negligently constructed and since the time of its construction has been negligently maintained in the condition aforesaid, so that the surface water flowing in and along the street from the north and west stops and stands on said street along and beside plaintiff's property, while prior to said time no surface water was collected and conveyed to plaintiffs' property and permitted to stand and remain at and near as it does at the present time."

There is no evidence that the defendant in any way changed the grade of the street--other than the incidental leveling of the same in paving--or that it caused any surface water to invade or run on plaintiffs' property.

The plaintiffs' evidence tended to prove that the pavement was so constructed as to have uneven places in it which caused small pools of water to stand in and along the gutter in front of plaintiffs' property. There is no evidence that the damage was caused by the collection of any surface water from up or down the street, but that owing to the depressions and unevenness in the surface of the gutter and street, the rain that fell in front of plaintiffs' property in the street and along the block would flow from the crown or center of the street to the gutters where such depressions would hold a portion of such surface water, and owing to the unevenness caused by negligent and faulty construction these pools would remain until at times the water would become stagnant and at other times it would be frozen.

Here the defendant's evidence tended to show that it did nothing but level the street up to the established grade and surface the street with cement where earth had been before. This would necessarily prevent the water that fell in the street from percolating through the ground and such water could only escape by flowing to the gutters and following the grade that was there before the improvement was constructed, or by the process of evaporation. From Locust street to Division street, which is the block plaintiffs' property is on, there is a fall of one foot nine inches. With that much of a fall to the block (which was the grade of the street) a cement pavement and gutter properly constructed would of course carry off the water, provided the cement was laid smoothly, and so as not to contain pockets or depressions in which the surface water would collect and be held. The city would not be liable for the consequences of the increased flow of surface water that the pavement required the gutters to carry, provided it caused the cement covering to be laid so as to properly drain the street and so as not to contain pockets. The evidence of plaintiffs we think tends to establish the fact, not that there was an insufficient grade to the street in order to drain it, but that there was a negligent laying of the cement to that grade so as to make the surface of the cement not conform to the grade throughout the block. This would be a negligent construction and injuries caused therefrom entitled plaintiffs to damages. The evidence shows, however, that these pockets or depressions were at most of slight depth--two to three inches--and the damage from this cause alone is not very great. The first instruction given by the court at plaintiffs' request does not confine the jury to a finding for plaintiffs on a negligent construction but is so framed that it authorizes a verdict in...