Summary
affirming judgment against the City of Meridian for water damage to the Bryants' property resulting from the City permitting debris to accumulate around nearby storm sewers, noting that "the tendency of drains to become obstructed must be kept in view, and . . . the situation must be remedied from time to time so as to maintain adequate drainage in each case"
Summary of this case from Fortenberry v. City of JacksonOpinion
No. 40695.
March 10, 1958.
1. Municipal corporations — drains — liability for failure to exercise reasonable care to maintain efficiency of drains.
Where landowners' property was located on street that was protected by storm drains which collected surface waters flowing down street and carried them away, and city filled ruts in street with sand which washed down and obstructed drain openings causing water to flow on owners' land and damage their house and garden, city was liable for damages resulting from its refusal to correct condition.
2. Municipal corporations — drains — instructions — liability for failure to exercise reasonable care to maintain efficiency of drains.
Plaintiffs' instruction, complained of, properly submitted the issue as to whether or not the city negligently caused or permitted the accumulation of sand and debris to the extent that it interfered with the natural flow of the water and thus caused it to overflow and damage plaintiffs' property.
3. Bill of particulars — generally — city not prejudiced by denial of part of its requested bill of particulars.
Although motions for bills for particulars should ordinarily be sustained if the court is in the least doubt, record in case showed clearly that city was in nowise prejudiced by the denial of a part of the requested bill of particulars.
4. Verdict — quotient verdict — testimony of only juror that did not assent to verdict — inadmissible for purpose of trying to show such a verdict.
Where landowners brought action for damages to their property against city which contended that jury rendered a quotient verdict, testimony of only juror that did not assent to verdict was not admissible for purpose of trying to show such a verdict.
5. New trial — quotient verdict — evidence required to overturn a jury verdict.
To overturn jury verdict on ground that it was a quotient verdict, evidence must affirmatively show that jurors agreed in advance to the return of such verdict.
6. Damages — award of $633 in favor of property owners against city for obstruction of drain — not excessive.
Award of $633 to property owners for damage to house and grounds caused by city's negligence in interfering with natural flow of surface waters was not so excessive as to evince passion or prejudice.
Headnotes as approved by Lee, J.
APPEAL from the Circuit Court of Lauderdale County; WILLIAM J. GUNN, JR., Judge.
Ethridge, Minniece Bourdeaux, Meridian, for appellant.
I. The proof was insufficient to support the verdict of the jury, and the requested peremptory instruction for the appellant should have been granted. Anderson v. Ludlow, 62 S.W.2d 785; Atchison v. Challiss, 9 Kan. 603; City of Laurel v. Hearn, 143 Miss. 201, 108 So. 491; Crystal Springs Brook Trout Hatchery Co. v. Lomira (Wis.), 162 N.W. 658; Fox v. New Rochelle, 240 N.Y. 109, 147 N.E. 544; Gulf Coast Co. v. Bowers, 80 Miss. 581, 32 So. 114; Hazlehurst v. Mayes, 84 Miss. 7, 36 So. 33; Holman v. Richardson, 115 Miss. 169, 76 So. 136; Irvine v. Smith, 304 Kan. 868, 202 S.W.2d 733; Kosmak v. New York, 22 N.E. 945; Newton Coca-Cola Bottling Co. v. Murphrey, 212 Miss. 823, 55 So.2d 485; Oklahoma City v. Evans, 50 P.2d 234; Filtrol Corp. v. Hughes, 199 Miss. 10, 23 So. 891; Roche v. Minneapolis (Minn.), 27 N.W.2d 295; Steed v. Kimbrough, 197 Miss. 430, 19 So.2d 925; Strauss v. Allentown, 63 A. 1073; Trestonsberg v. Mellon (Kan.), 295 S.W. 1064; Van Trump v. Kansas City (Mo.), 173 S.W. 32; Windle v. City of Springfield (Mo.), 275 S.W. 585; Xidis v. Gulfport, 221 Miss. 79, 72 So.2d 153; 56 Am. Jur., Secs. 67-70 pp. 549-54; Vol. XVIII, McQuillin on Municipal Corporations (3rd ed.), Secs. 53.118, 53.120 pp. 467-68, 472.
II. The Court erred in granting appellees certain instructions and refusing appellant certain instructions, thereby instructing the jury that they could find a verdict against appellant by reason of surface waters flowing over dirt washed from the street North of appellees' house regardless of whether or not they believed appellant was negligent in grading said street. City of Laurel v. Hearn, supra; Gulf Coast Co. v. Bowers, supra; Hazlehurst v. Mayes, supra.
III. The County Judge erred in not requiring appellees to furnish the requested bill of particulars showing the location of the storm sewer drainage system alleged to have been installed by appellant and the date of its installation. Bates v. City of McComb, 181 Miss. 336, 179 So. 737; Sec. 1499, Code 1942.
IV. The verdict of the jury was a quotient verdict and should have been set aside. Buckeye Cotton Oil Co. v. Owen, 122 Miss. 14, 84 So. 133; Parham v. Harney, 6 Sm. M. 55; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522.
V. The verdict on its face was excessive and the amount thereof, and the evidence showing how it was arrived at evinced passion and prejudice and should have been set aside. Gulf S.I. RR. Co. v. Beard, 129 Miss. 827, 93 So. 357; Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650; Mississippi Power Co. v. Byrd, 160 Miss. 71, 133 So. 193; Savery v. Gray (Miss.), 51 So.2d 922; State Highway Comm. v. Brown, 176 Miss. 23, 168 So. 277.
Williamson Williamson, Meridian, for appellees.
I. Cited and discussed the following authorities: Alden Mills v. Shirley (Miss.), 115 So. 126; Brewer v. Town of Lucedale, 189 Miss. 274, 198 So. 42; Buckeye Cotton Oil Co. v. Owen, 122 Miss. 14, 84 So. 133; City of Meridian v. Tingle, 226 Miss. 317, 84 So.2d 388; D.L. Fair Lbr. Co. v. Weems, 196 Miss. 201, 16 So.2d 770, 151 A.L.R. 631; Harris v. Pounds, 185 Miss. 688, 187 So. 891; Morris v. Robinson Bros. Motor Co., 144 Miss. 861, 110 So. 683; Rosamond v. Carroll County, 101 Miss. 701, 57 So. 979; Salter v. Jennings Furn. Co., 144 Miss. 194, 109 So. 704; Thompson v. City of Philadelphia, 177 So. 39; Ulmer v. Pistol, 115 Miss. 485, 76 So. 522; Westerfield Meeks v. Catlett, 153 Miss. 228, 120 So. 458; Westerfield v. Shell Petroleum Corp., 161 Miss. 833, 138 So. 561-62; Sec. 17, Constitution 1890; 39 Am. Jur., Secs. 201-02, 205, pp. 476, 478, 482.
Joe Bryant and wife, Mrs. Pearl Bryant, sued the City of Meridian, Mississippi, in the County Court of Lauderdale County for damages to their property. From a verdict and judgment in their behalf, the City appealed to the circuit court, where the judgment was affirmed. The City has prosecuted its appeal here.
The declaration charged in effect that the City, in constructing and maintaining storm sewers and outlets near the plaintiffs' property, altered and interfered with the natural surface of the soil and the natural flow of water, and negligently caused or permitted dirt and sand to accumulate and remain in that condition; that the accumulation, so remaining on the hard surfaced portion of the street and on the concrete sidewalk, interfered with the natural flow of the water and its access to an artificial sewer installed by the City; that the water, on that account, accumulated at this point and overflowed into their premises and thereby damaged their garden, fruit trees and dwelling house; and that the City, although notified of such situation, failed and refused to remedy it.
The City's motion for a bill of particulars was overruled except as to the nature and extent of the damage. The answer denied the material allegations of the declaration, and alleged that, if any changes of any kind were made, the same were the acts of contractors; and that the water was following the same course as it had done for many years.
The evidence for the plaintiffs was to the following effect: They lived at 1613, Eighth Avenue, on the west side thereof, in the City of Meridian, near the intersection of Marion Road. Surface water drained down the avenue from north to south. Just north of the home of the plaintiffs, for many years, an underground storm sewer went under the street from east to west, receiving and disposing of the water from the east ditch. This sewer also had an opening on the west side and received the water from that ditch. Thus from both sides of the avenue, water was carried underground to a point behind the property of the plaintiffs, where it was discharged. The City hauled quantities of sand and put it on the surface of the avenue to fill ruts. This sand did not mix with the soil, but washed down to and above the opening of the storm sewer, near an oak tree, on the west side, and, with the other debris, stopped up the opening and prevented the escape of the water. As a result, the collected water flowed over the sidewalk and into the premises of the plaintiffs, damaging their garden, flowers and shrubs, and causing the foundation of the house to rot. Several witnesses gave corroboration both as to the cause of the overflow of water and the resultant damage. The proof also showed that this condition was brought to the attention of the City, and that it failed to remedy the situation.
One witness for the City had never noticed the sewer opening near the oak tree, but he admitted that he had seen accumulations of sand and debris, higher than the sidewalk, with water flowing over the sidewalk six or eight inches deep. An employee of the City disclaimed any knowledge of the sewer opening on the west side, although the other proof was that it had been there many years. The other testimony for the City was to the effect that the water was flowing over a natural course which had been followed from time immemorial, and in minimization of the damages of the plaintiffs.
The City contends here that there was no change in the grade; that it had the right to keep its streets in a reasonably safe condition; that it did not collect and turn loose surface water on the plaintiffs' property; that the proof failed to show any responsibility of the City with reference to the drain or opening; that the water ran over the sidewalk before it got to the opening, even if the City had been guilty of negligence in allowing it to stop up; and that for these reasons, it was entitled to its requested peremptory instruction.
(Hn 1) The cases of Vicksburg v. Porterfield, 164 Miss. 581, 145 So. 355, and Cain v. City of Jackson, 169 Miss. 96, 152 So. 295, and those which follow them, are a complete answer against the City's contention.
In the Porterfield case, supra, the drain under an embankment was obstructed by dirt, tin cans, and other debris, so that the mouth was covered. As a result the water was impounded and rose into the houses on the west side. The City refused to remedy the situation. The opinion said that "the city was using Walnut street as a public street and had assumed control of it, and whether the city placed the fill and drain itself, or when it did, it was under duty to keep same in a condition to serve the purpose for which it was constructed." The opinion cited Nesbitt v. City of Greenville, 69 Miss. 22, 10 So. 452, 30 Am. St. Rep. 521, to show that whether the obstruction is created by the municipality, the city must take notice of such defects as ordinary care will discover. It was also commented that the tendency of drains to become obstructed must be kept in view, and that the situation must be remedied from time to time so as to maintain adequate drainage in each case.
In the Cain case, supra, there was an accumulation of logs, trees and debris, in the culverts, which obstructed the flow of water and caused it to overflow onto the premises in question. The Court cited the Porterfield case, supra, and held erroneous and prejudicial two instructions for the city, namely, that it was only required to provide a sufficient outlet to take care of the water on all occasions except for unprecedented rainfall, or when logs or debris clogged the outlet, and that it was not liable for obstructions or debris which it did not place there, even though they may have caused the flooding of the property. See also Hodges v. Town of Drew, 172 Miss. 668, 159 So. 298; Thompson v. City of Philadelphia, 180 Miss. 190, 177 So. 39; Stigall v. Sharkey County, 207 Miss. 188, 42 So.2d 116; City of Jackson v. Robertson, 208 Miss. 422, 44 So.2d 523; City of Meridian v. Sullivan, 209 Miss. 61, 45 So.2d 851. In the last mentioned case, the city broke a hole in the appellee's culvert and also negligently failed to keep its own culverts free from obstructions, thus causing the water to flow onto Mrs. Sullivan's property.
(Hn 2) The plaintiffs' instruction, complained about, was not erroneous, but properly submitted the issue as to whether or not the City negligently caused or permitted the accumulation of sand and debris to the extent that it interfered with the natural flow of the water and thus caused it to overflow and damage the property. See the cases cited above.
(Hn 3) Although motions for bills of particulars should ordinarily be sustained, if the court is in the least doubt, the record in this case clearly shows that the City was in nowise prejudiced by the denial of a part of the requested bill of particulars here.
(Hn 4) The City also contends that the jury rendered a quotient verdict. It offered as a witness the only juror who did not assent to the verdict. Counsel concede that the trial judge's refusal to admit this evidence was in accord with previous decisions of this Court. This is manifestly true. Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Morris v. Robinson Brothers Motor Company, 144 Miss. 861, 110 So. 683. The Court is not aware of any good reason to change in any way the effect of those decisions.
(Hn 5) The small slips of paper, with different amounts thereon, and unexplained, were wholly insufficient to sustain the allegation that a quotient verdict had been returned. The rule is that the evidence must show affirmatively that the jurors agreed in advance to the return of such a verdict. Buckeye Cotton Oil Company v. Owen, 122 Miss. 14, 84 So. 133. See also 89 C.J.S., Trial, Section 472 c, pp. 113-5.
(Hn 6) The City also complains that the verdict is excessive. Taking into consideration the cost of the property, the award of the jury, in the sum of $633, appears to be large. The oral proof showed substantial damage. Besides, on motion of the City in the presence of the jury, the court and jury went upon the premises and viewed the same. The court has no way of knowing just what they saw. The inanimate objects may have spoken louder than the words of human witnesses. Under all of the circumstances, the Court is not in position to say that the verdict is so excessive as to evince passion or prejudice.
From which it follows that the judgment must be, and is, affirmed.
Affirmed.
Roberds, P.J., and Hall, Kyle and Gillespie, JJ., concur.