Appeal from the Circuit Court of Cook County; the Hon. SIGMUND
J. STEFANOWICZ, Judge, presiding. Reversed and remanded.
MR. PRESIDING JUSTICE SMITH DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 17, 1968.
The plaintiffs obtained a jury verdict of $21,000 for water damage to their residence resulting from allegedly inadequate or defective village storm sewers. The trial court ordered a remittitur and reduced the judgment to $12,070.46. Plaintiffs consented to the remittitur as a condition to the denial of a new trial, but reserved their right to question the propriety of the remittitur on appeal in accordance with Ill. Rev Stats 1965, c 110, § 68.1. By its appeal, the village attacks the judgment so entered and the plaintiffs attack the propriety of the remittitur.
The defendant-appellant first asserts that the trial court should have directed a verdict in its favor as requested. The home of the plaintiffs is located on the northwest corner of the intersection of Elm Street and Sunset Avenue in the village and faces Elm. There is a storm sewer in Sunset. A spur drain located on the plaintiffs' property and terminating at the back of the property connects with this sewer. The downspouts to the house drain into this spur sewer. The liability of the defendant-village to the plaintiffs must be predicated upon the existence of some duty owed by the village to the plaintiffs in connection with (a) the Sunset Avenue drain or (b) the spur drain located wholly upon plaintiffs' property and a breach of that duty. There is no evidence in the record that the village constructed the sewer in Sunset, the spur drain, or that either was constructed by a private party and subsequently dedicated to the village. The village manager testified that the records of the village show a meeting on June 7, 1915, and the "granting of permission to a subdivider for the installation of sewers on Sunset Avenue." Plaintiffs' Exhibit No. 48 is a plat of such drains and shows their location in Sunset. There are no connecting spur drains located on private property shown in this exhibit. The construction or ownership of a drain or sewer is, however, basically immaterial.
". . . where a municipality has adopted a sewer or drain constructed by a private person and has assumed control over it, the fact that the municipality has not constructed the sewer or drain will not excuse the municipality from liability for negligence in its operation." ILP, Cities, Villages, and Other Municipal Corporations, § 554, p 136.
The village manager testified on behalf of the plaintiffs that, he became manager on August 1, 1957; there was an inspection of the village sewers prior to that time; during his employment there had been an inspection of the sewers on a regular basis; there was a program of maintenance to clean all catch basins or street inlets at least once every other year; and this system is still in effect. It further appears that a supplementary or auxiliary storm sewer was placed in Sunset after the flood of July 1957. It thus appears that the village had assumed the inspection, maintenance and the repair of the storm sewer in Sunset and was therefore under a duty to the plaintiffs not to be negligent in the performance of that duty.
As to the spur drain on the plaintiffs' property, it is shown on the map of the village sewer system now hanging in the village hall. That same map shows privately-owned storm sewers on private property of others. The village engineer who prepared the map explained that the presence of these spur drains on the village map was so that the village would be advised and informed of the private sewers draining into the village sewer. There is nothing in the village records or elsewhere indicating that the village had an easement to either install or maintain this spur sewer on plaintiffs' property and normally such an easement would be obtained. The evidence further shows that during the repair of the property, the plaintiffs poured concrete into the spur drain and effectively plugged it. Thereafter sometime in 1958, at the request of the plaintiffs, the village likewise plugged this sewer in the village street at its connection with the village sewer.
The village manager testified that he didn't know whether the spur drain into the plaintiffs' property was inspected or cleaned, and a search of the records did not disclose an application by or a permit issued to the property owner for permission to attach this particular spur drain to the village's sewer. No one testified to any inspection or maintenance by the village. The presence on the village map of this spur drain and of other privately-owned spur drains creates no presumption of village ownership or control where direct testimony of the engineer who prepared the map is that it was for information only. On this record, therefore, it seems transparently clear that the village neither owned the spur drain nor had they inspected it and maintained it. The record is thus barren of any facts creating an obligation or duty on the defendant-village to maintain, inspect, or repair this spur drain.
Let us turn now to the occurrence events which precipitated this suit. Plaintiffs acquired this seven-room, two-story, frame-colonial house on October 2, 1954, and moved in around November 1 the same year. In October, prior to occupying the house, Mrs. Burford noticed surface waters in the intersection at Sunset and Elm, but did not then examine the house. In July 1955, there was a heavy rain and water started coming into their basement and reached a depth of approximately 2 inches. In September of the same year, a like rain occurred and this time the water reached a height of 6 inches. In August or September 1956, the third rain occurred and the water in the basement reached a height of approximately 8 inches. In July 1957, there was a heavy rain and flood and this time the water reached a depth of from 4 to 6 feet, remained in the basement overnight, and a deep freeze, sewing machine, and other furniture and articles were floating around. Mrs. Burford noticed a slushing of water and a rocking and shaking of the house. She called the fire department to disconnect the electricity and was advised by them to move out with her children. At this time, there was a sea of water across the street in all directions, their lawn was under water, and it was the same at the neighbors. She and the children moved out. There is little doubt but that the rain in July 1957, was a gully-washing, frog-strangling rain. Plaintiffs' witness Reed testified "we had a 7-inch rain and at that time it reversed the flow of the Chicago River it got so heavy that it flooded the Daily News basement." The official report of the United States Weather Bureau read in part as follows: "The deluge on the evening of the 12th set new 6 and 24-hour rainfall records for Chicago . . . The heavy rainfall resulted in severe flooding, and practically paralyzed transportation. Damage ran into the millions of dollars." A professional meteorologist testified that the record rainfall on July 12 was substantially greater than anything that had officially been recorded before that time, and that similar rainfalls of that encountered on July 12 could not be expected to return for well in excess of 100 years. It has been stated:
". . . even if there is negligence concurring with an extraordinary flood or rainfall, the municipality is relieved from liability if the flow is so voluminous in character that it would of itself have produced the injury independently of such negligence. In other words, if the superior force would have produced the same damage whether or not the municipality had been negligent, its negligence is not deemed the cause of the injury." CJS, Municipal Corporations, § 879.
In Carlson v. A. & P. Corrugated Box Corp., 364 Pa 216, 72 A.2d 290 (1950), the Supreme Court of Pennsylvania stated:
". . . a unanimous host of authorities, both in our own Commonwealth and elsewhere, . . . uniformly hold that although no liability can be fastened upon the defendant if the damage is caused by an act of God so overwhelming as of its own force to produce the injury independently of the defendant's negligence, such liability does arise if the damage results from the concurrence of the defendant's negligence with the act of God and the damage would not have occurred in the absence of such negligence."
See also 59 ALR2d 324, § 19(a); Bouillon v. City of Greenville, 233 Ill. App. 500. Assuming without presently holding that the defendant-village was negligent, we think it abundantly clear as a matter of law that the defendant-village cannot be liable to the plaintiffs on any part of their damages occasioned by the flood of July 12, 1957. It seems clear from this record that the flood was so overwhelming and so devastating that the damages to the plaintiffs would have occurred notwithstanding any independent negligence of the defendant-village. 59 ALR2d 326, § 19(b).
During the fall of 1957, the plaintiffs repaired their home. To do so, it was necessary to jack up the entire house on hydraulic lifts, remove and rebuild the entire basement and foundation at a cost of $12,070.46, the precise amount of the judgment entered in this cause. The evidence discloses that the intersection of Sunset and Elm was a swamp in 1915, and that a portion of the plaintiffs' lot was included in it; the natural drainage in the area was towards this intersection; and the composition of the soil was such that this house began to settle shortly after it was built. Mrs. Burford had noticed a large, running diagonal crack on the east wall when they inspected the property prior to purchase. Mr. Burford testified that he was home during the September 1955 episode; the water came in mostly up through the floor and in the joints between the walls and the floor in the south end of the building; there may have been ...