Martin v. Benoist

• Citation: 20 Mo.App. 262
• Parties: WILLIAM MARTIN, Respondent, v. JOSEPH BENOIST, Appellant.
• Decision Date: 05 January 1886
• Court: Court of Appeals of Kansas

20 Mo.App. 262

WILLIAM MARTIN, Respondent, v. JOSEPH BENOIST, Appellant.

Court of Appeals of Missouri, Kansas City.

January 5, 1886

APPEAL from Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Affirmed.

Statement of case by the court.

This action was begun before a justice of the peace against Joseph Benoist and William Keene upon the following statement:

" The plaintiff states that on the _____ day of June 1883, he was tenant, and occupier as such, of house number ____, Missouri avenue, Kansas City, Missouri; that defendant Benoist, was at the time before named owner of said house and also of the land adjoining, east, upon which he and his co-defendant were building a foundation for the erection of a house; that defendant undertook to and did locate a sewer leading from said foundation to and connecting with a sewer under the said house so occupied by plaintiff, which last named sewer connected with a main on the street; that said defendant negligently and carelessly permitted the water from the street, when rains fell in said month, to run into and fill said foundation, and so negligently and carelessly constructed said sewer connection that the floods from said foundation, so filled as aforesaid, percolated through the opening made for said sewer connection, and filled the house of plaintiff to a depth of about three feet, thereby injuring and damaging the house and his property and goods to the amount of one hundred dollars. An account of the goods so injured is hereto attached."

In the circuit court, to which the case was taken on appeal, the plaintiff dismissed as to Keene.

The sewer named in the statement was a pipe-sewer.

Malvina Blanchard owned the house, the lower story of which plaintiff occupied. Malvina Blanchard also owned a lot adjacent to plaintiff's house on the east. The defendant was the agent of Malvina Blanchard, and, as such, preparatory to the building of a house upon said lot had a cellar dug and a foundation built thereon. There was between the cellar thus dug and plaintiff's house a space of about eight feet. The cellar was dug and the foundation was built by parties under contract with defendant as such agent. In order to construct a pipe sewer from the cellar to a connection with a sewer under plaintiff's house, a tunnel was made by defendant through the eight feet of earth separating the cellar from the said house. The sewer-pipe was laid through said tunnel and connected, by piercing the foundation of plaintiff's house, with the sewer thereunder, by an experienced plumber under contract with defendant. There was no evidence tending to show any carelessness or negligence in the digging of the cellar, the building of the foundation, or the laying of the sewer-pipe, or the connecting of it with the sewer under the plaintiff's house.

The plaintiff's evidence tended to show that the defendant caused the tunnel to be filled with loose and imperfectly packed dirt. The defendant's evidence tended to show that " after the sewer was laid, defendant ordered the men to fill up said opening (the tunnel) with earth and to tramp it in as solidly as possible, and defendant and others saw that the men did so."

The plaintiff introduced evidence tending to show that in the latter part of July, 1883, a very heavy rain fell, partially filling the cellar dug on the adjacent lot, and that the water made its way from the cellar through the tunnel, percolating through the loosely packed dirt, under and into the plaintiff's house, reaching therein the depth of about three feet, causing the injury complained of.

The plaintiff, against defendant's objection, was permitted to testify that plaintiff and defendant went to Mr. Moore's office, where defendant consented to be sued along with Wm. Keene; and that defendant had said in testimony before Justice Teasdale that he was responsible for the damage done.

MILTON CAMPBELL, for the appellant.

I. The facts stated constituted no cause of action, and it was error for the court to admit any evidence to go to the jury under such a statement. See section 2852, Rev. Stat; compare section 3511, Rev. Stat.; Biddle v. Boyer, 13 Mo. 532; Scott v. Robards, 67 Mo. 289.

II. It was error to admit in evidence defendant's statement of consent to be sued and of acknowledging in the trial before the justice that he was responsible for the damage done. They did not tend to prove the facts stated as ground of action; they were irrelevant to the issue, and were merely prejudicial. State v. Rothschild, 68 Mo. 52; Kenny v. R. R., 70 Mo. 243; Hicks v. R. R., 68 Mo. 329.

III. It was error to overrule defendant's demurrer to plaintiff's testimony. Nothing tending to prove defendant's ownership of lot, or any lease from defendant to plaintiff, or any right of plaintiff in the land damaged, or any negligence in the construction of sewer, appeared in testimony.

IV. It was error to refuse the first five instructions asked by defendant. The jury were misdirected at every point. The assumptions in the instructions given are unfounded. Story on Agency, sect. 308-313; Henshaw v. Noble, 7 Ohio St. 231; Harriman v. Stowe, 57 Mo. 93; Kent's Com. (10 Ed.) 878, note.

V. It was error to instruct the jury as the court did of its own motion. These instructions declare that an agent is liable for mere negligence to third parties and they assume as true, propositions which are not true, and which are for the jury alone. Glasgow v. Lindell heirs, 50 Mo. 60; Ins. Co. v. Seminary, 52 Mo. 48.

BOGGESS & MOORE, for the respondent.

I. No person, whether landlord, agent or stranger, has the right so to obstruct the flow of surface water, collect and hold it under his control, and then suffer it to escape into his neighbor's building, without being guilty of a wrong and liable for all injury done thereby. The complaint states a good cause of action. Taylor's Landlord and Tenant (7 Ed.) sect. 174, and citations. Cooley on Torts, 326; Wharton on Negligence, sect. 792; Bryant v. Sparrow, 62 Mo. 546; Priest v. Nichols, 116 Mass. 401; Harriman v. Stowe, 57 Mo. 93; Lottman v. Barnett, 61 Mo. 168; Benson v. R. R., 78 Mo. 504.

II. The issue of facts was properly submitted to the jury. The evidence admitted was competent, including the admissions of defendant, and together supported the issues on the side of plaintiff and involved in the case.

III. The five instructions asked by defendant were properly refused. They were inconsistent with themselves, inconsistent with other instructions given for defendant, inconsistent with those given by the court of its own motion, and they were not properly predicated of the evidence in the case. Besides, those given by the court of its own motion, properly declared the law, and were as favorable to defendant as he was entitled to ask them. State ex rel. v. Smith, 31 Mo. 566; Pond v. Wyman, 15 Mo. 175.

IV. The case was fairly submitted to the jury under proper instructions, the finding was for the right party and the verdict ought not to be disturbed. Hedecker v. Ganzhorn, 50 Mo. 154; Jackson v. Magruder, 57 Mo. 55; Bradford v. Floyd, 80 Mo. 207.

HALL J.

I.

The defendant contends that the petition does not state a cause of action, and that the facts of this case as stated by us do not constitute a cause of action. Eliminate from the petition all the averments concerning the ownership by defendant of plaintiff's house and the adjacent lot, and concerning the relation of tenant and landlord existing between plaintiff and defendant, as surplusage, as we have eliminated the evidence in support of those averments from our statement of the facts of this case, and let us consider this case, as to the petition and the facts, as if the petition did not contain such averments, and as if there had been no evidence in support thereof. In so doing we shall but yield to defendant's contention, which is that the petition does not allege and the evidence did not tend to show that the plaintiff was the defendant's tenant.

Now, then, with the elimination made, does the petition state a cause of action? Do the facts of this case constitute a cause of action in favor of plaintiff?

The most favorable view, to the defendant, to take of this case, is that it rests upon the principle of law applicable to surface water. We shall determine this case, then, with reference wholly to that principle.

We find that there was no negligence in the digging of the cellar. There was no negligence committed by defendant or any one else by reason of which the surface water ran into the cellar. The defendant had the cellar dug as he had the right to do. After having done so, without fault on his part, the surface water ran into the cellar, partially filling it. Had the defendant the right to empty the water, thus collected in the cellar, by means of the tunnel into the plaintiff's house? Substantially this very question was decided by the supreme court of this state in the case of McCormick v. R. R. (57 Mo. 433), in the negative. In that case, Judge Vories delivering the opinion, it was said, after first having stated the general rule of the common law: " In the present case the plaintiff complains that the defendant had so constructed its road that the embankment made therefor had collected a large body of surface and overflowed water on the east side of the road bed where the same adjoined the land of the plaintiff; and that after said water had been so collected in a large body or pond, the defendant negligently and maliciously cut an artificial channel from said body of water through the embankment of its road bed, and drained all of said large body of water onto plaintiff's land, by which plaintiff was damaged, etc.

The first instruction asked by plaintiff told the jury in effect,...