Opinion
No. 29,889.
Filed January 7, 1960.
APPEAL — Negligence — Pleading and Practice — Complaint — Judgment — Record — Failure To Sustain Judgment — No Basis in Law or Fact — Municipality — Municipal Property — Faulty Condition — Facts Known Giving Rise to Duty To Repair — Absence of Evidence of Knowledge of Condition or Facts — Effect — Negligence Action Not Sustained. — In this action for damages allegedly sustained by appellees by reason of a break in the main line of one of the city's sewers, where even though there may be some evidence to sustain the contention that there was negligence in the construction some 45 years ago, still the court finds no basis in law or fact in the record to sustain the judgment since the complaint only asks for money spent in repairing the sewer, which was never authorized by the city, and where in fact there is no evidence that the city either knew of the faulty condition of its property or that any facts existed from which the city should have known of the faulty condition which placed a duty upon it to make the repair, then the pleadings and proof do not sustain an action in negligence.
From the Elkhart Superior Court, Frank J. Treckelo, Judge.
The appellant, City of Elkhart, appeals from an action for damages brought by appellees, C. Whitney Slabaugh and Mary E. Slabaugh, allegedly sustained by appellees by reason of a break in the main line of one of appellant's sewers.
Transferred from the Appellate Court pursuant to Section 4-215, Burns' 1946 Replacement. Reversed.
REPORTER'S NOTE: Superseding Appellate Court opinion reported in 157 N.E.2d 842.
[*] Transferred under § 4-215, Burns' 1946 Repl. See City of Elkhart v. Slabaugh (1959), 157 N.E.2d 842.
John R. Harman, of Elkhart, and Carl L. Chattin, of counsel, of Goshen, for appellant.
Philip E. Byron, Jr., of Elkhart, for appellees.
This is an action for damages allegedly sustained by appellees by reason of a break in the main line of one of the City's sewers. The break had resulted in a stoppage of drainage from appellees' property. Appellees voluntarily repaired the sewer which was 18 feet under the City street and in this action they demand judgment in "damages" in the sum of $757.35, which is the cost of the repair. No claim is made for damages to appellees' property by flooding. In support of their action appellees assert that the sewer was negligently constructed.
It is contended as ground for appeal that the judgment is not sustained by sufficient evidence and is contrary to law.
The theory of appellees' complaint is anomalous. For even though there may be some evidence to sustain the contention that there may have been negligence in the construction some 45 years ago, still we find no basis in law or fact in the record to sustain the judgment since the complaint only asks for money spent in repairing the sewer, which was never authorized by the City.
In fact there is no evidence that the City either knew of the faulty condition of its property or that any facts existed from which the City should have known of the faulty condition which placed a duty upon it to make the repair. Therefore, the pleadings and proof do not sustain an action in negligence.
We conclude therefore that the judgment is not sustained by sufficient evidence and is contrary to law.
This cause is transferred to the Supreme Court and the judgment is therefore reversed and new trial ordered.
NOTE. — Reported in 163 N.E.2d 583.