Dunn Singley, for appellant.

I. The lower court erred in overruling appellant's motion to dismiss appellee's cause of action or to require appellee to elect which of three inconsistent causes of action combined in one count that she would proceed upon.

"It was not a case of a declaration stating a cause of action in one count one way and another way. It is a case of a declaration which states the cause of action in one count two ways, the grounds of liability being also inconsistent with each other." I.C.R. Co. v. Abrams, 84 Miss. 456, 36 So. 542.

Appellant's liability to appellee for failing to use reasonable care in the matter of its drains or culverts is separate and distinct from any trespass appellant might have committed in going upon the land of appellee and breaking the private culvert of appellee. In the former, appellant's liability is a continuing one; in the latter, there could be but one recovery for the breaking.

II. The lower court erred in permitting appellee's witness, Wilkins, to testify as to the value of the property involved upon the assumption as to the property being in a "fair state of repair in 1942 and 1943".

By framing the question asked the witness, Wilkins, "If in 1942, or anywhere between that time and 1943, if that property had been in good repair, what would have been the fair market value of it", appellee was calling for expert testimony. Being thus hypothetically put, the question must have included sufficient facts to afford ground for a reasonable conclusion. 22 C.J. 709, Section 796 (b).

The witness is not shown to have had personal knowledge of the property during the period fixed by the question (nor would such knowledge have aided the question as put) and, since these other factors were not given him by the question, his answers were valueless, and at the same time, highly prejudicial to appellant.

"The question should place before the witness sufficient facts to enable him to give a judgment which will be of value to the jury, and indeed it has been regarded as necessary that the question should assume all material facts relating to the subject on which the judgment of the expert is sought." 22 C.J. 710, Section 800 (ee).

III. The lower court erred in overruling appellant's motion for a directed verdict at the conclusion of appellee's evidence and at the conclusion of the evidence for both parties.

In the beginning, it is to be observed that no charge is made or proof offered, that appellant's culverts are inherently inadequate. Their normal ability to carry the water channeled through them from the natual bed of the creek is thus recognized. The liability of appellant, if any, must therefore be predicated upon appellant's failure to use reasonable care to maintain them — to keep them free of obstructions. Unless appellant failed to discharge this duty, it is guilty of no negligence and therefore not liable to appellee for any damage. City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; City of Vicksburg v. Porterfield, 164 Miss. 581, 145 So. 355; Cain v. City of Jackson, 169 Miss. 96, 152 So. 295.

It is evident that the drains in question have, from time to time, become stopped up. No testimony of witnesses is needed to overcome the natural assumption that a branch draining such a large area will tend to become full of debris. This Court recognized that in the Porterfield case, supra. Appellee's case, however, may not rest alone on the fact that they have, from time to time, become clogged but she must prove that appellant failed to use reasonable care to keep them open or adequate. That the drains became clogged or inadequate on a given occasion or from time to time does not, prima facie, prove the negligence of appellant in failing to use reasonable care. The doctrine of res ipsa loquitur has no application here. City of Natchez v. Cranfield, 155 Miss. 540, 124 So. 656. Now since appellee offered no proof that the clogged condition of the drains was a constant condition, a fact which the record shows did not exist, the issue must finally resolve upon what proof there is to sustain the issue that appellant was negligent in not using reasonable care to keep the drains open.

Appellant's proof showed that appellant did clean out the drains in question at least 15 or 20 times a year behind big rains which averaged those figures. This testimony of appellant is not denied nor was any effort made to rebut it by appellee. The record thus contains not only the uncontradicted proof that appellant did maintain its culverts and drains but contains appellee's own admissions that appellant did so. What issue was thus presented for jury determination? What was the theory upon which the verdict for appellee was returned? It could have been upon one of only three theories. First, that appellant is an insurer against damages occasioned by the temporary clogging of its drains. But this is not admissible for reasonable care is the measure of duty required of a municipality.

Second, that the mere fact that the damage happened was sufficient prima facie to show negligence. But the verdict cannot be sustained on that basis for the doctrine of res ipsa loquitur does not apply. This leaves only the third theory and that is appellant failed to use reasonable care in maintaining the culvert.

This theory must fall because,

(a) Appellee admitted the performance of appellant in this regard.

(b) Appellant's proof as to its performance is undenied.

(c) The failure of appellee to maintain her own culvert was the proximate cause of the damage.

To the above we can only add that the jury may have tried to award damages for the value of the broken culvert itself, but this may not stand for appellee laid no claims for such a damage.

We respectfully urge that the motion for a directed verdict should have been sustained.

Gerald Adams and M.V.B. Miller, for appellee.

Such wilful and arbitrary conduct on part of a municipality is seldom disclosed by a court record as is disclosed by the record in the case at bar.

The City of Meridian instead of removing the pipes crossing its Fifth Street culvert that were catching debris and trash therein so as to stop it up in 1943 as it finally did in 1945, its councilman in charge of streets, James Goodwin, knocked a large hole in appellee's culvert permitting water to escape therefrom onto appellee's property, informing appellee that he was doing so to take care of water that was backing up from the culverts "on the folks up there". That the ditch was stopped up and the water was backing up and overflowing therefrom. Appellant's Fifth Street culvert and Pacific Street culvert both became clogged at times, the effect of such being to force water that would normally go down through the culverts if same had not been clogged to the surface and across appellee's property "just like a river".

A case more like the case at bar than any other decided by this Court is that of City of Meridian v. Peavy, 188 Miss. 168, 194 So. 595, but not nearly as strong on the facts as is the case at bar, and also lacking the wilful and wanton feature present in the case at bar.

Complete answer to appellant's contention that there are separate and antagonistic causes of action stated in appellee's declaration is found in the case of Brown v. Mississippi Central R.R., 144 Miss. 326, 109 So. 796 and in Fewell v. Meridian, 90 Miss. 380, 43 So. 438.

In Jones on Evidence, Third Edition, page 1413, Section 894, is found: "Where evidence is objected to as inadmissible for certain specified reasons, the objection will be deemed limited to the grounds specified."

Brown v. State, 46 Fla. 159, 35 So. 82; Bailey v. Chicago, M. St. P. Ry. Co., 35 D. 531, 19 L.R.A. 653, 54 N.W. 596.

Counsel can not put the trial court in error by arguing before this Court objections to testimony that were not urged on the trial court. The witnesses Wilkerson and Kimbrough testified they personally were familiar with the property and values of real estate and gave answers on such facts.

Counsel asked his witnesses no hypothetical questions, then why should he ask that we be required to ask ours such questions?

At the close of appellee's evidence appellant made a motion for a directed verdict stating the grounds upon which he relied therefor.

In Gains v. Brannon, 139 Miss. 312, 104 So. 175 is found: "In determining the question whether or not appellants were entitled to a directed verdict, the evidence must be treated as proving every fact favorable to appellee's case which it established either directly or by reasonable inference.

Appellant in admitting "that appellee's property was flooded from time to time as a result of the drain being clogged" admitted itself out of court so far as its contention that the trial court erred in not sustaining its motion for a directed verdict. Here we have it admitted that not just once, an isolated instance, but on numerous occasions, appellee was damaged as a result of the drain being stopped up. This Court will not hold that a jury could not as a matter of law draw an inference that appellant was not negligent in permitting its culverts repeatedly or from time to time to clog up so as to again and again do further and more damage to appellee's property.

Under the statement in counsel's brief, it was not a case of whether an "ordinarily prudent person ought reasonably to have anticipated injury" to appellee "as a result of the drain being stopped up". Appellant knew the stopping up of the drains caused damage and yet from time to time permitted the condition to recur knowing that such recurrences would certainly damage appellee.

In arguing that the verdict is against the overwhelming weight of evidence, counsel urges that it was appellee's culvert connecting with appellant's Fifth Street culvert and its Pacific Street culvert that caused the damages to appellant, appellant contending that its culverts were not clogged so as to cause overflow but appellee's was so clogged.

Every witness purporting to have knowledge of the culverts there, whether testifying for appellee or appellant, testified that from time to time the city's culverts were clogged. None testified that appellee's culvert was ever clogged. Yet, counsel wants this Court to hold as a matter of law on the speculation of counsel, that the stopped up culverts of the city did not proximately contribute to appellee's damages but such was caused by a condition counsel speculates existed in appellee's culvert.