Coyne v. Golland

• Decision Date: 07 July 1922
• Docket Number: No. 16357.,16357.
• Citation: 243 S.W. 376
• Parties: COYNE v. GOLLAND et al.
• Court: Missouri Court of Appeals

243 S.W. 376

COYNE v. GOLLAND et al.

No. 16357.

St. Louis Court of Appeals. Missouri.

July 7, 1922.

Rehearing Denied July 15, 1922.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by James M. Coyne against Michael Golland and another. From judgment for plaintiff, defendants appeal. Affirmed.

J. A. Wolfort and Anderson, Gilbert & Hayden, all of St. Louis, for appellants.

Frank C. O'Malley, of St. Louis, for respondent.

ALLEN, P. J.

Plaintiff herein, James M. Coyne, is an infant, and brings this suit through his father, William R. Coyne, as his next friend. The petition alleges, in substance, the appointment of the father as next friend; that at the times mentioned in the petition plaintiff was the owner and in possession of certain described lots of ground in the city of St. Louis, fronting on the north side of Easton avenue a short distance east of Union boulevard, in the city of St. Louis, improved by a two-story brick building fronting on Easton avenue; that the defendants are husband and wife, and, at the times mentioned in the petition were the owners and in possession of certain lots of ground on the northeast corner of Easton avenue and Union boulevard, lying immediately west of plaintiff's said property; that defendants' lots, with the exception of a small areaway or passageway between the buildings of plaintiff and defendants, was covered with a large three-story brick building fronting on both union boulevard and Easton avenue; that a small areaway or passageway, about two feet in width, covered with granitoid, extends northwardly from Easton avenue between the two buildings, the passageway being on the land of defendants; and that beneath this granitoid passageway, commencing about five feet north of the north line of Easton avenue, defendants maintained a pit about seven feet in length, four feet deep, and the width of the passageway, covered with an iron grating, maintained by defendants for the purpose of admitting light to the cellar of the building, at the bottom of which pit was a drainpipe for the purpose of carrying off surface water that might flow therein.

And the petition further alleges that defendants' building was so constructed that rainwater falling on the roof thereof was collected and carried by gutters to the east side of the building, and discharged into a downspout extending from the roof along the east wall of the building in the said areaway, which downspout entered the ground, in the areaway, about three, feet south of the pit. And it is alleged that—

About one year prior to the filing of the suit the defendants "carelessly and negligently permitted said downspout to become rusted, rotted and decayed at a point about five feet above the ground," so that rainwater from the roof was precipitated "in great torrents at each recurring rain into said areaway, pit, and against the side and west wall and foundation of plaintiff's said building"; that during all of said time defendants carelessly and negligently permitted the drain at the bottom of said pit to fill up and be choked with dirt and rubbish, "so that said pit also filled with water during said rains, causing said water to lodge against the west wall and foundation of plaintiff's said building"; that, "although well knowing, or by the exercise of ordinary care they would have known, of said rusted, decayed, and rotted condition of said downspout and of the choking of said drainpipe in ample time to have repaired the same and to have prevented the injury and damage complained of herein by the exercise of ordinary care, said defendants carelessly and negligently permitted and maintained said condition for a period of more than six months."

And the petition further avers:

"That by reason of defendants' carelessness and negligence as aforesaid the west wall and foundation of his said building became soaked with water, and the mortar and cement in said wall and foundation washed out; the said wall and foundation materially weakened; the joists and studding on the first floor of said building rotted, decayed, and destroyed; the cellar of said building flooded with water; and the furnace in said cellar rusted and decayed; and plaintiff's said building made damp and almost uninhabitable—all to plaintiff's damage in the sum of $2,500, for which sum he prays judgment, together with the costs of this action."

The answer admits that plaintiff is a minor, denies that William 11. Coyne has been duly appointed next friend, averring that plaintiff has no capacity to maintain the suit, and denies generally each and every allegation of the petition.

The trial, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $770, from which the defendants prosecute this appeal.

The evidence for plaintiff shows the location of the two buildings, the existence of the granitoid passageway, two feet in width, between the same, with the pit beneath said passageway, covered with grating, and the location of the said downspout on defendants' building, substantially as alleged in the petition. The testimony shows that the downspout mentioned, along the east wall of defendants' building, and consequently in this areaway, was located about 15 or 18 inches from the south line of the building; that there was an "offset" or elbow In this downspout about six feet above the ground, at which point the downspout turned into a recess in the wall of the building. The pit mentioned began a few feet north of the south line of the two buildings, and according to the testimony was about eight feet in length, was the width of the passageway, and about four feet deep, covered with iron grating, with a drain at the bottom thereof, as alleged in the petition. It appears that the stone foundation of plaintiff's building extended at that point slightly above the ground level; i. e., above this granitoid passageway.

William B. Coyne, father of this infant plaintiff, and who had complete charge of plaintiff's building, testified that early in October, 1916, he observed that the downspout on defendants' building, at the "offset" mentioned, had begun to leak, and that "whenever it would rain the water would fall down there to the pit" and "come through" plaintiff's wall into the cellar of plaintiff's building. And the evidence shows that water falling from an opening in this downspout upon the surface of the granitoid passageway would flow into the pit through the iron grating covering the same. Coyne testified that "about two or three days," or not more than five days, after he observed the leak, he told defendant Dr. Golland about it, and asked him to repair the spout. And the witness said that thereafter, when he again called Dr. Golland's attention to the matter, the latter promised to have the downspout fixed; and lie further testified that he called Dr. Golland's attention to the defective downspout "a number of times over the winter"; and that about eight months elapsed after he first spoke to Dr. Golland about the matter before the spout was repaired. And this witness testified that in the meantime rainwater from time to time ran into the pit from the defective downspout, collected and stood there because of the stoppage in the drain at the bottom of the pit, and that the water entered the foundation of plaintiff's building and ran into plaintiff's cellar, injuring the stone foundation, the brick wall above the same, the ends of the joists of plaintiff's building, and doing other damage. In the east basement wall of defendants' building was a window opening upon this pit it appears that the bottom of this window was about one foot above the bottom of the pit. The testimony is that if water should rise to a height of about one foot in the pit it would flow through the window into defendants' building. William B. Coyne testified that the water in the pit "would have to raise to a foot or more before it could flow into the doctor's cellar." It thus appears that if water collected in the pit it would only rise to a point three feet below the surface of the passageway, or more than three feet below the top of plaintiff's foundation wall; and that any damage done to plaintiff's foundation above that point, or the brick wall above the foundation, or to the joists, must have resulted, if at all, through capillary attraction. Such appears to be plaintiff's theory, though evidence for plaintiff makes it appear that when water entered the pit it ran through plaintiff's foundation In streams.

One Duke, formerly employed as janitor for defendants' building, testified that he worked for Dr. Colland "along in the summer of 1917," and in the previous year; that William a. Coyne told him of the defective condition of the downspout, asking him to notify Dr. Golland concerning the same; that he did notify Dr. Golland the following morning; that "a little while afterwards" he again spoke to Dr. Golland about the downspout; Coyne having again called his attention to it. When asked how long afterwards this was, he said: "I guess a month or two or three weeks. I couldn't tell the exact time; something like that." He said that Dr. Golland said he would have the downspout fixed, and did have it fixed "a little time afterwards."

Dr. Golland testified that Coyne did not speak to him about the downspout until some time in the latter part of June, 1917; that he had "attended to it" before Coyne called his attention to it; the janitor having previously spoken to him about it. He said: "The colored man told me that Mr. Coyne called his attention that the downspout is defective, and I immediately looked at it." He said that at that time "there was only a small hole in it"; that he thereupon telephoned to a tinner who fixed the spout within five or six days; and that he at once had the drain cleaned out, and summoned a plumber to "see that the sewer should work." And he further testified that...