DeUtsch v. Abeles

• Decision Date: 29 April 1884
• Citation: 15 Mo.App. 398
• Parties: WILLIAM DEUTSCH, Respondent, v. NATHAN ABELES ET AL., Appellants.
• Court: Missouri Court of Appeals

15 Mo.App. 398

WILLIAM DEUTSCH, Respondent,

v.NATHAN ABELES ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Apr. 29, 1884.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Reversed and remanded.

G. W. TAUSSIG, for the appellant: The tenant alone is liable for a nuisance on the rented premises.-- City v. Kaime, 2 Mo. App. 66; Norton v. Wiswall, 26 Barb. 618; Lowell v. Spaulding, 4 Cush. 277.

B. J. WERTHEIMER, for the respondent: The owner of a freehold is liable for injuries resulting from the condition of the freehold itself, whether in his actual occupation or not.-- Eakin v. Brown, 1 E. D. Smith, 36; Bellows v. Sackett 15 Barb., 96; Mayor, etc., v. Bailey, 2 Denio, 433; Regina v. Watts, 1 Salk. 357; Ball v. Nye, 99 Mass. 582. Where one erects a nuisance, or that which subsequently becomes a nuisance, and lets the premises to another, he is liable precisely as though he had not demised the premises and even though he can not enter lawfully to abate it.-- Fletcher v. Rylands, L. R. 1 Exch. 279, 282; Rosswell v. Prior, 12 Mod. 639; Thompson v. Gibson, 7 M. & W. (Exch.) 456; Phinizy v. The City of Augusta, 47 Ga. 260. Where there is no covenant to repair on the part of either landlord or tenant, where a nuisance results from such want of repair, an action may be maintamed against either of them therefor.--Wood's L. & T. 618, 620; Swords v. Edgar, 59 N. Y. 35; Staples v. Spring, 10 Mass. 79; Shipley v. Fifty Associates, 101 Mass. 251.

BAKEWELL, J., delivered the opinion of the court.

The petition in this cause contains the following allegations:--

Plaintiff owns and occupies a house erected upon a lot in the city of St. Louis. Defendant Abeles owns the adjoining house and lot, of which defendant Taylor is the lawful occupant. In March, 1882, the ownership and occupancy being as stated, water was permitted to flow from defendant's premises through the wall dividing them from those of plaintiff, into the cellar of plaintiff's house, flooding his cellar, injuring the health of his family, and damaging plaintiff's wall. Plaintiff notified defendants of the nuisance and damages thus occasioned; but defendants neglected to stop the flow of water, or remedy the injury, whereupon plaintiff, so far as he could, repaired the cause of the water flow, and at his own expense, employed competent workmen to remedy the defects found to exist in the drainage system and water pipes on defendants' premises. After the repairs, the flow of water upon plaintiff's premises ceased until the 1st of January, 1883, at which time water was again permitted to flow through the partition wall aforesaid from the premises of defendants into those of plaintiff, flooding his cellar to the depth of three feet. Of all which defendant had notice, and neglected, for an unreasonable time, to abate the nuisance, until great injury had been done to plaintiff and his property by reason thereof. Plaintiff was compelled at great expense to employ workmen to remove the water from his premises. Plaintiff has demanded of defendant Abeles, that he reimburse him for the money so expended in repairs, but said defendant refuses to do so, and plaintiff has not been reimbursed by the defendants, or either of them. By reason of the unskillfulness and negligence of defendants in the construction and management of the drainage system and water pipes upon the herein described premises of defendants, in not having the said drainage and water pipes properly repaired, taken care of, and secured, to prevent leakage and overflow, and in not connecting said division wall to prevent the percolation of water through the same, plaintiff's premises were greatly damaged as aforesaid, rendering the first floor untenantable, destroying property on the place, entailing great expense on plaintiff, and rendering his house unhealthful to his damage, two thousand dollars, etc.

Defendants filed separate answers; each was a genera denial, except that the defendant Abeles admitted that he owned the property described in the petition as his.

There was a verdict and judgment for plaintiff, for two hundred and twenty-five dollars.

It appeared that defendant Taylor had been in possession of the premises in question for several years, as tenant from month to month of Abeles. Plaintiff introduced evidence tending to show that several members of his family were ill in January and February, 1883, and that this illness was occasioned by the water in the cellar.

Plaintiff also introduced evidence tending to show that his cellar was flooded in March, 1882; and that the water came from defendants' premises; that several men were employed fifteen days to pump it out, and a plumber was also engaged. The cellar was full again in January, 1883, and the plumber was again employed. The plumber was paid by plaintiff for the services rendered, two bills of $48 and $90. Plaintiff also paid $5 for pumping in March, 1882, and $2 a day for eight days pumping in January, 1883. There is nothing in the testimony for plaintiff as preserved in the bill of exceptions to show that the water came from any leak in the pipe on defendants' premises.

The plumber says he thought the leak might be in the pipe on defendants' premises and that the hydrant was “old style” and “played out.” But he nowhere states that he found the leak, or that he found any leak at all. Nor does he say whether the hydrant of which he speaks was in plaintiff's yard or in that of defendants.

It appears from the testimony for defendant that the leak was in the lead pipe leading from the rear cellar to the hydrant in the yard on the premises of defendant, and that the escape of water was stopped by turning off the water from the hydrant in the yard, which was done without interfering with the water going into the kitchen.

All testimony as to any occurrences in March, 1882, was introduced against the objection of defendants that it was incompetent because the petition does not allege that plaintiff was injured by any misconduct of defendants at that time, nor claim any damages for any flow of water then, and that under the pleadings there can be no recovery on account of anything that happened in March, 1882.

Plaintiff introduced testimony that there were three cracks in the cellar wall in January, 1883, which did not seriously affect the wall; but the witness did not say that they were occasioned by the overflow, but said that they were perhaps occasioned by simple settling when the walls were built.

At the close of plaintiff's case, and at the close of the whole case, defendants interposed demurrers to the evidence, which were overruled. At the instance of plaintiff, the court instructed the jury as follows:--

“If the jury believe from the evidence that plaintiff owned and occupied premises No. 2707 Walnut Street, and that defendant Abeles is the owner, and the defendant Taylor is the tenant of premises 2709 Walnut Street, and that before the filing of this suit, defendants permitted water to flow from their premises, No. 2709, over to plaintiff's premises, and that after notice by plaintiff to defendants thereof, defendants failed in a reasonable time to stop the same, and that such water flowed from defendants' premises on to plaintiff's premises and into the cellar thereof, rendering the enjoyment of plaintiff's premises and his family's lives therein disagreeable...