182 Wis. 141 | Wis. | 1923
The following opinion was filed October 16, 1923:
The plaintiff was the owner of lot 17, bounded on its southerly side by Franklin street and on the easterly end by Fifteenth street, in the city of Mani-towoc. Running diagonally across the westerly end of lot
On March 25, 1920, there was a heavy rain. Debris deposited in the open ditch above the culverts constructed by the plaintiff was washed through plaintiff’s culverts into the city culvert, where it lodged against the domestic sewer pipe before referred to, causing the culvert to be closed practically, and as a result of which the water was backed up and the plaintiff’s premises were flooded.
One of the questions hotly contested upon the trial was whether or not the damage was caused by reason of 'the obstruction in the city’s brick culvert on Fifteenth street
The finding of the jury that the defendant was negligent by reason of its inserting the domestic sewer as before described so as to obstruct the brick culvert is amply sustained by the evidence. It is not shown that it was constructed pursuant to any plan and the testimony is clear that it was against all recognized engineering practice to construct a domestic sewer so that it should extend through the brick culvert in the manner described. The plaintiff filed a claim as follows:
City of Manitowoc,
State of Wisconsin.
To /. F. Rap-pel Company, Dr. Date April 5, 1920.
City of Manitowoc, State of Wisconsin.
To damages and loss caused to stock of goods, building, and business of I. F. Rappel Comr pany, a corporation, because of flooding of premises on March 25, 1920.$16,000
The claim was duly verified and was upon the regular blank furnished by the city for filing claims. The claim was not acted upon by the council. It is contended that this does not comply with sec. 925 — 134 of the general charter law relating to claims, which provides:
“All claims and demands against the city shall be itemized,*145 verified by the oath of the claimant or some one in his behalf, and filed with the clerk, who shall deliver the same tó the comptroller for examination.”
By the provisions of sec. 925 — 58, Stats. 1919:
“No action shall be maintained by any person against any city organized under the provisions of this chapter upon any claim or demand of any kind or character whatsoever, until he shall have first presented his claim or demand to the council for allowance and the same shall have been disallowed in whole or in part; provided, that the failure to pass upon such claim or demand within sixty days after its presentation shall be deemed a disallowance thereof.”
In Van Frachen v. Fort Howard, 88 Wis. 570, 60 N. W. 1062 (1894), it was held that a charter providing that “no action shall be maintained upon any claim or demand of whatsoever nature other than a city bond or order” applies to tort actions.
In Flieth v. Wausau, 93 Wis. 446, 67 N. W. 731 (1896), it was held that the words “no claim or demand” used in a city charter apply only to demands arising on contract.
Prior to the enactment of ch. 127 of the Laws of 1899, sec. 925 — 58 did not contain the words “of any kind or character whatsoever.” It is quite significant that in the light of the decisions referred to, the amendment related solely to sec. 925- — 58 and made no reference to sec. 925 — 134, which latter section requires claims and demands to be itemized. The word “itemized” is used almost exclusively with reference to accounts and the word “account” in turn refers to matters resting in contract. It appears quite clearly, therefore, that it was not the intent of the legislature to require claims founded in tort to be itemized although they are required to be presented to the common council for allowance or disallowance. Were it otherwise, we think the claim in question is sufficiently itemized. It states the name of the owner, the character of the injury sustained, a description of the property injured, its location, and the amount of damages sustained. While it might well
It was the claim of the plaintiff that the backed-up water found its way into plaintiff’s building through an oval-shaped aperture- in the bottom of the plaintiff’s concrete culvert, located at a point a short distance below where th« plaintiff’s concrete culvert joined the plaintiff’s brick culvert. It was the claim of the defendant that the backed-uj: water found its way into the plaintiff’s premises by reasor of the defective construction of the wooden bottom of plaintiff’s brick culvert and that the wooden bottom of the brick culvert gave way at or near the point where it was attached to plaintiff’s concrete culvert. The plaintiff pro duced witnesses who testified that an oval hole in the bottom of the concrete culvert was there very shortly after the flood; the defendant produced witnesses who testified tha; while they were making an examination of the plaintiff’s culverts some five or six weeks after the flood they made the hole in the bottom of the plaintiff’s concrete culverl by pounding with a brick. The plaintiff produced a witness who was permitted, against the objection of the defendant, to testify that the plaintiff’s witnesses had made statements concerning the existence and location' of this hole at a time prior to a disclosure by the defendant of its claim that the hole had been made in the manner described It is claimed that this testimony is hearsay and that its admission was error. It was the contention of the defendant
Plaintiff was awarded damages. in the amount of $11,498.95. This included damages amounting hr $481.86 for loss of profits by interruption of business during the three days succeeding the flood, March 26th, 27th, and 29th. We see no reason why the plaintiff is not entitled to recover as a part of its damages the loss so sustained.
The principles of, law involved in this case are comparatively simple. The issues of fact were submitted by the trial court to the jury under proper instructions. A careful examination of the record discloses no reversible error, and the judgment of the circuit court must be affirmed.
By the Court. — It is so ordered.
A motion for a rehearing was denied, with $25 costs, on December 11, 1923.