Mewhirter v. Hatten.

the legislature, and we cannot so hold in the absence of positive and explicit legislation.

In the second case of Grant v. Green, 41 Iowa, 88, which was an action by a wife against the administrator of her deceased husband's estate, for services rendered in taking care of her husband in his life-time during a period of his insanity, it was held that she could not recover for such services, notwithstanding she had been employed by the guardian of her insane husband to perform them. It is there held that it is the right and duty of husband and wife to protect and care for each other in case of sickness or insanity. These and like services arising out of the married relation are to be rendered in conformity with the mutual obligations which have been assumed in entering into that relation, and are not such as have "wages" attached thereto, within the meaning of the statute. When the wife performs labor or services for others for which wages accrue, such wages are her own separate property, but for labor performed and assistance rendered in the discharge of her domestic duties as a wife no wages, in the proper meaning of that term, attach or follow. Both husband and wife have in their marriage vows bound themselves to the discharge of their respective duties toward each other, for which no wages as such are due. These duties being mutual, their discharge by the parties constitute the only compensation contemplated by law.

In Peters v. Peters, decided at the present term, it was held that the wife could not maintain an action against her husband for assault and battery. It is there said that, "whilst it must be admitted that very radical changes have been made in the relation of husband and wife. still it seems to us that these changes do not yet reach to the extent of allowing either husband or wife to sue the other for a personal injury committed during coverture." It seems to us, also, that these changer have not transformed the wife into a hired servant, or established th law to be that the husband, when prostrated on a bed of sickness, wil not be entitled to the tender care and watchfulness of his wife, unless he has the ability and expects to pay her wages therefor. These dutie are mutual and reciprocal and essential to the harmony of the marital relation. To abrogate these duties, or remove the mutual obligations to perform them, would be to dissolve that relation and establish that of master and servant.

We are of opinion that the court erred in sustaining the defendant's motion to strike out, and the judgment must be

Reversed.

In an action against a city to recover damages for injuries occasioned to plaintiff's property by reason of an insufficient culvert, held, (1) that the city's liability was not altered by the fact that the culvert had been paid for by the county; (2) that the city was not liable if it employed a competent engineer to construct the culvert even though he misjudged as to the capacity required; (3) that the city was bound to exercise reasonable care, judgment and skill in the construction of the culvert; and (4) that if plaintiff could have protected his property at slight expense he could not recover beyond what such protection would have cost. (See note, p. 626.)

ACTION for damages.

The petition in substance alleges that in the year 1871 the defendant, a duly incorporated city, constructed a culvert on Case street, near the plaintiff's premises, in such a careless and improper manner that it obstructed the flow of a natural stream of water running near plaintiff's premises, and caused large quantities of water to be discharged thereon. damaging and depreciating his property to the extent of $500.

The answer admits the making of the culvert described, but denies that it was constructed in a careless manner, and denies the other allegations of the petition.

The answer further alleges that, in 1871, in the judgment of the proper officers of defendant, it became necessary to establish the grade of Case street, and to construct a culvert across a drain for surface water flowing over that part of said street, near plaintiff's premises. That said grade and culvert were, in the judgment of the constituted authorities, established and built in a proper manner, and that if the property of plaintiff has been injured, it was without the fault or wrong of defendant, and on account of his own fault in not bringing his lot to a proper grade.

Afterward the defendant filed an amendment to its answer as follows: "That the culvert referred to in plaintiff's petition was built under an appropriation made by the board of supervisors of Scott county, Iowa and was alone paid for by the county of Scott. That said Scott county, through its proper officers, directed the building of said culvert, and appropriated the money therefor, and that said defendant, or its engi neers, in building said culvert acted for and as the agent of said Scott county, and that said culvert was not in fact built or paid for by said defendant, but that said defendant acted alone for said county.

A demurrer to this amendment was sustained.

Van Pelt v. The City of Davenport.

The evidence shows that the city of Davenport projected one of its streets across a ravine with banks on each side four or five feet high, and for the purpose of allowing the passage of the water accumulating in the ravine, the city constructed the culvert in question, which is sixty feet long, and has a capacity of three by six feet. This ravine drains a large surface; it has always been the natural place for the surface water to run, and after rains the water flows through it for several days. It empties into the Mississippi river a few hundred feet south of the culvert. The ravine originally ran close to the edge of plaintiff's lot, but when the culvert was constructed the channel of the ravine was removed about thirty feet, improving the appearance of the lot. A portion of plaintiff's lot is about eighteen inches below the established grade of the city. The culvert is not sufficient to carry off the water that comes down in a heavy rain. The engineer of the city who drew the plans for the culvert believed it would be large enough to carry off all the water that would come down the ravine.

There was evidence tending to show that if plaintiff's lot was brought to grade, a wall or rip-rap sufficient to protect it from overflow and damage could be constructed for $25.

There was a jury trial and a verdict and judgment for plaintiff for $350. Defendant appeals.

H. M. Martin, for appellant.

Rose & Benson. for appellee.

DAY, J. 1. There was no error in sustaining the demurrer to the amendment to defendant's answer. It is not denied that the culvert in question is within the corporate limits of the city, and was built under the direction of the officers of, and belongs to the city. The mere fact that the board of supervisors of Scott county appropriated the money to pay for the structure does not exonerate the defendant from liability for negligence or carelessness in its construction. The owner of premises is liable for any nuisance erected thereon, upon the ground that he is bound to control and use his property in such manner as not to produce injury to others. The Mayor of New York v. Bailey, 2 Denio, 433.

II. The defendant asked the court to instruct the jury as follows: 2. "In constructing the culvert the defendant was only required to use reasonable care; such care as a prudent man would use under like cir cumstances in reference to his own property. If you, therefore, find that the city had an engineer who was competent to take charge of such work, and that the size of the culvert was left to him and that he honestly be

Van Pelt v. The City of Davenport.

lieved, in drafting the plans for the culvert, that he was making it large enough, then, even if he were mistaken, the defendant is not responsible for his mistake, and the plaintiff cannot recover." The refusal of the court to give this instruction is assigned as error.

Taken together it announces a correct rule of law and should have been given. The city cannot be held liable unless for some neglect or omission of duty or negligence in its performance. It is not claimed that the culvert was out of repair, nor that it was in any way defective in construction, except that it was too small to admit of the passage of the surface water which accumulated in the ravine in consequence of unusually heavy showers. As the city must act through the agency of others, it was its duty to select a competent engineer. When such selection is made, the city has in that regard discharged its duty, and no direct negligence or omission is attributable to it. If a competent engineer acts in good faith in drafting the plans of a culvert, and honestly believes that he is making it large enough to accomplish the desired purpose, then no negligence of the servant is attributable to the principals.

If he is sufficiently competent and makes a mistake after the honest exercise of his best judgment, it is such mistake as is inseparable from human action. The making of such mistake cannot be attributed to negligence, for negligence is the failure to exercise ordinary care. If, then, the city can be held responsible for the consequences of such mistakes, it is bound at its peril to secure what is impossible, absolute perfection in its servants and agents.

In The Rochester White Lead Company v. The City of Rochester, 3 N. Y. 463, the defendant was held liable for injuries resulting from an insufficient culvert built for the purpose of conducting the water of a small natural stream, which had previously been the outlet through which the surface water of a portion of the city had been carried off, and which, because of its want of capacity and the unskillfulness of its construction, failed to discharge the waters which accumulated by a freshet, so that they were set back upon the property of plaintiff. But in that case it was shown that the engineer was incompetent and the culvert was improperly constructed.

III. It is urged that the defendant can in no event be held liable for the want of capacity of the culvert, and the court was asked in substance so to instruct the jury. It is claimed that, to decide the kind and capacity of a culvert is a judicial act, and that an error in judgment is in the nature of a judicial error for which the corporation cannot be held liable.

We have already seen that, for a mere mistake, notwithstanding the exercise of reasonable prudence and care, and the possession and exercise

Van Pelt v. The City of Davenport.

of competent skill on the part of its agents, the city is not liable. But this position of defendant goes much further and discharges the city absolutely from liability because of the alleged judicial nature of the act it is called upon to perform, notwithstanding the failure to possess and employ reasonable judgment and skill.

In support of this view, counsel cite Mills v. The City of Brooklyn, 32 N. Y. 489. In that case it was held that the city was not responsible for a want of judgment in devising a system of sewerage; and that the duty was of a judicial nature, requiring deliberation and judgment. In that case it was laid down as a very clear proposition that if no sewer had been constructed at the locality referred to, an action would not lie against the corporation, and it was said that the plaintiff's premises were in no worse condition from the construction of an insufficient sewer than if none had been made.

This case involves different principles. By projecting its street across the ravine the defendant rendered necessary the construction of a culvert to admit of the discharge of accumulating surface water. Before the street was extended the water in this ravine passed freely and unobstructedly and without damage to plaintiff's property. As the improvement made by the city created a necessity for a culvert, which the city could not neglect to construct without being derelict in its duty, it was incumbent upon it to exercise reasonable care, judgment and skill in its construction. Ellis v. Iowa City, 29 Iowa, 229; City of Mc Gregor v. Boyle, 34 id. 268.

IV. There was evidence tending to show that if plaintiff had raised his lot to grade, a wall or rip rap sufficient for its protection against damage could have been built for twenty-five dollars. The defendant asked the court to instruct as follows: "The law makes it the duty of all persons to protect their own property from damages, if they can do so by ordinary efforts, and they can charge the delinquent party for such expense and efforts only. Hence, the court instruct you that if you find that the plaintiff at a reasonable expense could have protected his property by building what the witnesses call a rip rap or wall, and he has failed to do so, then all he can recover as damages will be the cost of such rip rap or wall." The refusal to give this instruction is assigned as error. That it should have been given, see Simpson v. Simpson, 34 Iowa, 568.

V. The court in substance instructed the jury that if plaintiff was entitled to recover, the measure of his damages would be the difference in the value of the lot immediately before and immediately after the grading of the street and the construction of the culvert. This instruction VOL. XX.-79