Knoche v. Pratt

• Citation: 187 S.W. 578,194 Mo.App. 300
• Parties: ROSA A. KNOCHE, Respondent, v. EDWARD P. PRATT, Appellant
• Decision Date: 12 June 1916
• Court: Court of Appeals of Kansas

187 S.W. 578

194 Mo.App. 300

ROSA A. KNOCHE, Respondent, v. EDWARD P. PRATT, Appellant

Court of Appeals of Missouri, Kansas City

June 12, 1916

Appeal from Jackson Circuit Court.--Hon. Jos. A. Guthrie, Judge.

AFFIRMED.

Judgment affirmed.

Charles L. Dort and Edward C. Wright for appellant.

Harding Murphy & Harris for respondent.

OPINION

TRIMBLE, J.

--The second count of the third amended petition, being the count upon which the case was submitted, charged defendant with a trespass upon plaintiff's real estate in that defendant while excavating upon his own lot for the foundation of a building, entered upon plaintiff's property and wrongfully excavated and removed large quantities of dirt therefrom, thereby weakening the lateral support of plaintiff's building so that the west wall thereof fell, and plaintiff was damaged to the extent of the amount for which judgment was prayed.

The answer was a general denial, together with the charge that if the defendant or any one for him entered upon plaintiff's property and excavated as alleged in plaintiff's petition, it was with plaintiff's consent.

The answer also set up, as further and separate defense, that the defendant duly notified plaintiff that excavating would be done along the dividing line between the two properties, and plaintiff had knowledge of such excavating sufficiently long before the wall fell to enable her to protect her building but negligently failed to do so. As this would constitute no defense whatever to the trespass charged, we take it that it was intended as a defense to the first count of plaintiff's petition which defendant construed as charging a negligent excavating upon defendant's own property along said dividing line. But at the close of plaintiff's case, she dismissed the first count and stood solely upon the second count charging trespass.

The answer also charged that the wall fell by reason of its own faulty construction "and not through any negligent act or omission of this defendant or any one acting for him."

At the close of plaintiff's case defendant offered a demurrer to the evidence, which was overruled. Then after defendant's evidence was in and both sides had rested, the defendant again offered a demurrer. This was also overruled. The case was thereupon submitted to the jury which returned a verdict for plaintiff in the sum of $ 950. Judgment was rendered thereon and defendant has appealed.

Plaintiff owned a lot on which stood a two-story brick building used as a flat. Defendant owned a vacant lot west of and adjoining plaintiff's lot. The west wall of plaintiff's building was located four feet from the west line of her lot, so that between defendant's east line and plaintiff's wall was a strip of ground belonging to plaintiff which was four feet in width.

Desiring to erect a building upon his property, defendant made an excavation on his lot for a foundation and basement. This excavation was about eleven feet deep and extended from the north or sidewalk line of the lot south to a point about even with the south or rear end of plaintiff's building; and the east line of said excavation coincided with the division line between the two lots. As thus made, the excavation was wholly on defendant's property, and was four feet from the west wall of plaintiff's building, but in depth it went several feet below the footings of the plaintiff's foundation; and the west side of plaintiff's lot was a perpendicular wall of dirt. Defendant was going to erect his east foundation wall alongside of and against this division line. He desired to cement the outside of this foundation wall to keep out the moisture and, in order to have room to do so, it was necessary for him to excavate about two feet beyond his line and over on plaintiff's down to the depth of his foundation. He, therefore, entered upon plaintiff's land and excavated about two feet on her lot down to the depth of his excavation. This excavation on plaintiff's lot, some of the witnesses say, went down almost if not quite perpendicular, while others say it slanted toward the property line as it went down. The effect of this excavation on plaintiff's lot was to remove two of the four feet of earth between her building and the property line. As a result of this the rest of the dirt caved away from plaintiff's foundation and the west wall of her building fell. Plaintiff's evidence was that the trespass upon and excavation of her property was without her knowledge or consent.

The ground, or at least one of the grounds, upon which defendant rests his demurrer is that the record fails to show any connection of the defendant with the trespass. This claim is untenable. It is conceded, that the defendant owned the lot west of plaintiff's lot, and that the excavation first made was on defendant's lot. There is ample evidence in the record tending to show, not only that the excavation upon defendant's lot but also the excavation on plaintiff's lot, was done by defendant through his agents and servants. The same individuals who made the one excavation also made the other. The excavation on plaintiff's property which, if done without her consent, constituted a trespass, was done in order to properly protect defendant's foundation from moisture and was, therefore, for defendant's benefit. The evidence shows that the defendant paid for the work by giving a check on his firm's account. It also appears in evidence that the man who sought to obtain plaintiff's permission to excavate on her lot was acting for the defendant. These facts were clearly sufficient to raise the presumption that the excavation was made by the servants of the defendant. [Perry v. Ford, 17 Mo.App. 212, l. c. 220; 26 Cyc. 1573.] There was neither pleading nor proof that the excavating was done by an independent contractor, and even if the duty of the defendant owner, in making the excavation in question, be one that can be delegated to an independent contractor (which we do not decide nor pass upon), yet, if defendant claims he is not liable because the work was being done by an independent contractor and he, defendant, did not know that he, the contractor, would commit a trespass and excavate upon plaintiff's land, still the burden was on defendant to show that the work was done by an independent contractor. [26 Cyc. 1573; Slayton v. West End St. Ry., 174 Mass. 55, l. c. 63.] It was a matter peculiarly within defendant's knowledge, and since there is enough in the record to make a primafacie case for plaintiff, the burden of going forward with the evidence to show the relation between defendant and those doing the excavating was upon defendant. [Schneider v. Maney, 242 Mo. 36, l. c. 43.] This he not only failed to do but after being given an opportunity by the court to introduce the evidence showing that relation, he declined to do so. If any real doubt existed as to that relation, proof that it was that of owner and independent contractor was peculiarly within the power of defendant. [Davenport v. King Electric Co., 242 Mo. 111, l. c. 121.]

Defendant attaches much importance to the remarks of the court made at the time the final demurrer was overruled as to what the court should have done when the first demurrer was offered. The case is not affected by those remarks but only by what the court did. [Griffith v. Griffith, 180 S.W. 411.] Even if it be true that plaintiff failed to make a case by the evidence in chief, yet defendant went on and put in his evidence, and, in a consideration of the final dem...