City of St. Louis v. Arnot

• Decision Date: 20 February 1888
• Citation: 94 Mo. 275,7 S.W. 15
• Parties: CITY OF ST. LOUIS v. ARNOT.
• Court: Missouri Supreme Court

7 S.W. 15

94 Mo. 275

CITY OF ST. LOUIS v. ARNOT.

Supreme Court of Missouri.

February 20, 1888.

1. MUNICIPAL CORPORATIONS — WATER-WORKS — LICENSE — ACTION FOR SECRET USE OF WATER.

In an action by a city for the value of water, defendant admitted the use of the water, without his knowledge, from January, 1884, when a secret pipe was connected with the main pipes, by mistake of defendant's employes. Held, that it was proper to instruct the jury that no presumption arose from such admissions of the existence or improper use of the pipe prior to that date.

2. SAME.

In an action by a city for the value of water, evidence of the cost of the water-works, as a basis of water rates, is irrelevant and inadmissible.

3. EVIDENCE — HEARSAY.

In an action by a city for the value of water conducted by a secret pipe, not connected with a meter, statements of defendant's employes, as to what defendant said about such secret pipe, are hearsay, and inadmissible.

4. SAME — SECONDARY EVIDENCE.

In an action by a city for the value of water, the water commissioner testified that he received monthly reports from a rain-gauge, and from them could state the average rain-fall for a certain period. Held, that the reports themselves were the best evidence, and such statements were inadmissible.

Appeal from circuit court, St. Louis county; W. W. EDWARDS, Judge.

Action by the city of St. Louis against Jesse Arnot, for water consumed through a secret pipe. Defendant tendered the value of the water he admitted he had consumed, but denied any further liability. There was trial by jury, and verdict for plaintiff for the amount tendered, and plaintiff appealed.

Leverett Bell, for appellant. Fisher & Rowell and J. H. Zumbalen, for respondent.

BLACK, J.

The defendant is the proprietor of a livery stable in the city of St. Louis, and in connection with his business used water supplied by the city from 1876 to March 1, 1884, and for which he was charged according to the amount registered by a meter. The petition states that during that period he made use of a concealed pipe by which his stable was connected with the city supply in such a way that a large quantity of water passed from the water-mains, and was by him consumed without passing through the meter, and hence not registered or paid for; that the water thus used was of the value of $3,131.50. The answer, besides a general denial, states that on the 29th January, 1884, while repairing the pipes connecting with those of the water department, defendant's employes, by mistake, made a connection with a pipe so as to convey water to the stable which did not pass through the meter; that as soon as the mistake was discovered, he caused the pipe to be disconnected. Defendant admits his liability for water thus used and not paid for, from January to July, 1884, and tendered $57 in payment therefor. For the purposes of this appeal, it is enough to say that on the 25th July, 1884, the principal and assistant meter inspectors discovered a pipe through which water flowed to the stable without passing through the meter. This was followed and preceded by other evidence tending to show that the pipe had been thus used for eight years. On the other hand, the evidence for the defendant tended to show that this connection was made by the defendant's foreman in January, 1884, by mistake, and that previous to that time all the water used was duly registered by the meter. This evidence for defendant is strengthened by the testimony of Doyle, inspector of meters from 1876 to ...