Burk Bros. Meat & Provision Company v. Foster
| Decision Date | 06 November 1911 |
| Parties | BURK BROS. MEAT & PROVISION COMPANY, Appellant, v. W. P. FOSTER, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Adair Circuit Court.--Hon. Nat. M. Shelton, Judge.
AFFIRMED.
Judgment affirmed.
C. E Murrell and P. J. Reiger for appellant.
(1) The court erred in rejecting the statements and admissions of defendant. Statements and admissions made by defendant before and at the time the wall fell were competent. Admissions against interest are receivable against party making them. 1 Am. and Eng. Ency. of Law (2 Ed.), 675; Carder v Huskey, 79 Mo. 509; Meir v. Meir, 106 Mo. 411 420; Gubernator v. Rettalack, 86 Mo.App. 289. (2) The court erred in holding that plaintiff was not entitled to show defendant was careless and negligent in making the excavation. It is the duty of a landowner in making an excavation to do so with due care, that is, ordinary care. Gerst v. St. Louis, 185 Mo. 191; Larson v. Railroad, 110 Mo. 246, 84 S.W. 34. He must not in a wanton, careless manner injure his neighbor. Walters v. Hamilton, 75 Mo.App. 237. (3) In addition to the statement and admissions of defendant the court excluded all testimony on the issue that defendant was careless, wanton, and reckless in removing the earth on his own premises, which was error. The petition plainly alleged it and it was error to exclude evidence offered. Defendant knew or might have known the character of the soil that it would crumble and fall if left unsupported. He must use his own so as not to injure his neighbors. Carpenter v. Reliance Realty Co., 103 Mo.App. 480; Gerst v. St. Louis, 185 Mo. 191; Teepen v. Taylor (Mo.), 124 S.W. 1062; Thompson v. Railroad, 19 S.W. 509; 18 Am. and Eng. Cyc. of Law 551. (4) On the issue whether Foster undermined the Dockery wall or not. Plaintiff was entitled to have the jury pass upon the question. Ladd v. Williams, 104 Mo.App. 390; Tapley v. Herman, 95 Mo.App. 537; Williamson v. Transit Co., 202 Mo. 345. (5) When competent evidence is offered and admitted its effect and the weight of such evidence is for the jury. Williamson v. Transit Co., 202 Mo. 345.
Millan & Banning for respondent.
Plaintiff was only entitled to lateral support for his ground in its natural state, and was not entitled to such support for his ground encumbered by the weight of the building. Charless v. Rankin, 22 Mo. 566; Obert v. Dunn, 140 Mo. 476; Carpenter v. Realty Co., 103 Mo.App. 480. While it is ordinarily the duty of a party making an excavation so near the line of an adjoining owner as to endanger his neighbor's building to give notice of his intention to make such excavation yet when such adjoining owner has actual knowledge of such intention and sees such excavation being made, then no further notice is required, and the responsibility for the safety of the building devolves upon the owner. The court below did not err in excluding the offered evidence of what defendant said either before or after the wall fell. If afterwards, it could create no liability. A promise to pay made after the falling of the wall could create no liability--there was no consideration. The conversation with defendant before the falling of the wall was only to the effect that plaintiff told defendant it was dangerous. The mere fact that the wall cracked and fell is not enough to entitle plaintiff to recover. Carpenter v. Realty Co., 103 Mo.App. 480.
This is an action to recover damages sustained by plaintiff in consequence of the falling of a wall of the building plaintiff occupied as a tenant, the injury being caused, the petition alleges, by the negligence of the defendant, the adjoining owner, in making an excavation on his own land. At the close of the evidence of plaintiff the court peremptorily instructed the jury to find for the defendant and after unsuccessfully moving for a new trial, plaintiff brought the case here by appeal.
Plaintiff, a corporation engaged in the wholesale and retail meat business in Kirksville, had occupied a one-story brick building for seven years as the tenant of the owner, Mr. Dockery. Defendant owned the lot just east of this building and in the spring of 1909 began to excavate his lot preparatory to erecting a building thereon. He dug to the west line of his lot and to a depth of eight or nine feet which was deeper than the foundation of plaintiff's east wall. He gave no written notice either to plaintiff or to Mr. Dockery of his intention to excavate, but plaintiff's managing officers and Mr. Dockery were there during the progress of the work and saw what was done. The east wall of plaintiff's building was about one inch from the property line but its foundation, which was of rock, projected three or four inches beyond the perpendicular line of the wall and, consequently, projected two or three inches on defendant's land. In digging below the base line of the foundation defendant dug to his property line and in so doing removed the earth from under the part of the rock foundation projecting over that line. No effort was made by any of the interested parties to protect the wall from falling and two or three weeks after the work we have described was done, a part of the wall fell from the lack of proper support and damaged property of plaintiff in the building. There is evidence to the effect that the foundation rested on a kind of clay that slacks and disintegrates after exposure to the air and that the clay supporting the wall became weakened by such process to an extent to render it an insufficient support for the wall.
Plaintiff alleges in the petition "that on and for a long time prior to said 23rd day of October, 1909, the defendant was engaged in excavating and removing earth from his said tract of land adjoining the said one-story brick building occupied by plaintiff...
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