Bimmerle v. Langdeau

• Decision Date: 26 May 1914
• Docket Number: No. 16157.,16157.
• Citation: 167 S.W. 532,258 Mo. 202
• Parties: BIMMERLE et al. v. LANGDEAU.
• Court: Missouri Supreme Court

167 S.W. 532

258 Mo. 202

BIMMERLE et al. v. LANGDEAU.

No. 16157.

Supreme Court of Missouri, Division No. 2.

May 26, 1914.

1. EJECTMENT (§ 111)—NATURE OF ACTION— VERDICT—POSSESSION.

Under Rev. St. 1909, § 2389, providing that it shall be sufficient to enable plaintiff in ejectment to recover to show that, at the commencement of the action, defendant was in possession, and that plaintiff had such right of possession thereof as is declared in the article sufficient to maintain the action, a verdict omitting to find that defendant was in possession of the land in controversy at the commencement of the action or at any other time was fatally defective.

2. EJECTMENT (§ 110)—TRIAL—INSTRUCTIONS.

An instruction in ejectment, that before the jury could find for plaintiff they must believe from the evidence that defendants' wall was built on a portion of plaintiff's lot, so as to exclude plaintiff from any and all possession thereof, and though they found that the foundation did project over plaintiff's line, yet if plaintiff occupied the surface of the ground up to their line by having placed thereon timbers, tiling, and drain pipe, they could not recover, was properly refused, as limiting the plaintiff's right of possession of the property to the surface.

3. TRIAL (§ 260) — INSTRUCTIONS — REQUEST TO CHARGE.

It was not error to refuse a request to charge, where the instructions given correctly declared the law applicable to the case.

4. EJECTMENT (§ 132)—DAMAGES—EXCESSIVENESS —ACTION TO RECOVER LAND.

Where plaintiff brought ejectment for a strip of ground 2½ inches wide and 55 feet 2 inches long in a city block, and the evidence showed that lots were worth $40 per front foot, a verdict allowing plaintiff $100 damages for use and occupation was excessive.

Error to St. Louis Circuit Court; W. B. Homer, Judge.

Ejectment by Chris Bimmerle and others against Robert L. Langdeau. Judgment for plaintiffs, and defendant brings error. Reversed and remanded.

Albert E. Hausman, of St. Louis, for plaintiff in error. W. S. Campbell, of St. Louis, for defendants in error.

WALKER, P. J.

Defendants in error brought suit in the circuit court in the city of St. Louis, in ejectment, against the plaintiff in error. Defendants in error in their petition claimed that they were entitled to a strip of ground 2½ inches wide and 55 feet 2 inches long, in block 3776, in the city of St. Louis, and that plaintiff in error on November 16, 1908, entered into possession of same and unlawfully withheld such possession from them, to their damage in the sum of $100, for which they ask judgment, and for $1 monthly rents and profits, and for the rendition of the judgment until the possession of the premises is delivered to them, and for all other relief. The answer was a general denial.

The case was tried in December, 1909, before a jury, who found that the defendants in error were the owners of and entitled to the possession of the land described in the petition, and that they had sustained damage by reason of the occupation of same by plaintiff in error, in the sum of $100, and that the reasonable monthly value of the rents and profits of said land was $1 per month. Judgment was entered in accordance therewith. After the usual procedure, the case was brought here for review by a writ of error. There is no formal assignment of errors.

It is contended in the "points and authorities" (1) that the verdict is insufficient to support the judgment; (2) that the verdict is the result of passion and prejudice; (3) that the court erred in refusing to give instruction numbered III asked by plaintiff in error. The verdict is as follows:

"We, the jury in the above-entitled cause, being duly impaneled and sworn, do find for the plaintiffs, and that at the time of the commencement of this suit plaintiffs were the owners of and entitled to the possession of the lands described in the instructions, being situated in the city of St. Louis, state of Missouri, to wit: [Here follows a description of the land not necessary to be inserted.] And we further find that the plaintiffs have sustained damages by reason of the occupation of said lands by the defendant in the sum of $100.00. And we further find the reasonable monthly value of the rents and profits of said lands to be $1 per month."

Instruction numbered III asked by the defendant in error, and refused, is as follows:

"The court instructs the...