Craig v. Kansas City Terminal Ry. Co.

Decision Date29 May 1917
Docket NumberNo. 18222.,18222.
Citation271 Mo. 516,197 S.W. 141
PartiesCRAIG v. KANSAS CITY TERMINAL RY. CO. et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Suit by W. D. Craig against the Kansas City Terminal Railway Company and the William P. Carmichael Company, in which defendant last named sets up a counterclaim. Judgment for plaintiff, and the Railway Company and defendant last named appeals. Reversed and remanded.

Plaintiff sued the Kansas City Terminal Railway Company and the William P. Carmichael Company for damages to a building caused by an excavation made near it by the latter company as a contractor in the construction of a retaining wall for the right of way of the railroad. The answer of the Carmichael Company included a counterclaim for $172.40. On the trial there was a verdict for the railway company, and a verdict for the plaintiff against the Carmichael Company for $10,000, and also a verdict for plaintiff against said counterclaim. There was a remittitur of $2,500 by plaintiff, and a judgment in his favor for the $7,500. The Carmichael Company, hereinafter called the defendant, has appealed.

On June 21, 1911, when the work of excavation for such retaining wall began, the plaintiff was the owner of lot 1 in block 1 in Graham's addition to Kansas City. On that lot was a building the wall of which was contiguous to the right of way of the terminal company. There were then two deeds of trust on the property, one for $4,000, the other for $2,500, in both of which V. F. Boor was trustee. C. H. Johnson was payee of all the notes, none of which were mature when the suit was begun. At that place the railroad was in a cut about 35 feet deep, with a double track at about the center of the right of way, which was 125 feet wide. The bank sloped upward from near the track to about the floor of the basement of plaintiff's building. The plaintiff was daily about his business in and around the building during the whole progress of defendant's work, and was fully aware of its extent and nature. The south bank of the excavation was about 25 feet from plaintiff's building. The sides of the excavation were braced by sheet piles 3 inches thick, driven down to rock and supported by longitudinal and cross beams. From 4 to 7 feet of that trench at the bottom was excavated by blasting the rock. The evidence was conflicting as to whether such blasting was done by the use of overcharges of dynamite.

On September 9, 1911, while the work was in progress and before the wall was completed, plaintiff's north wall slipped down and out, so as to tear it loose from its connection with a considerable portion of the floors; but it remained standing. The piles by which defendant was attempting to support the side of its excavation were to some extent shoved out of line by the pressure of the dirt against them. There was danger that the wall of plaintiff's building would fall on defendant's work, and its workmen were threatening to quit on that account. Defendant's foreman, Hamilton, thereupon employed one Bovard to prop the building to keep it from falling, and on behalf of defendant paid him $172.40 for that work. Plaintiff testified that, soon after the work began, the foreman, Hamilton, told him that he need not protect his building, and promised him that defendant would shore it up and protect it from danger. Hamilton on the stand denied making such promise.

The petition seeks a recovery on the following grounds: (1) Because defendant gave plaintiff no notice of such contemplated work. (2) That defendant promised plaintiff to protect him against damage. (3) That defendant failed to do such work in short sections. (4) That defendant failed to support the sides of the excavation with piles in sufficient number and strength to support the earth. (5) That defendant used overcharges of dynamite in blasting the rock.

The answer, among other things, contained a general denial, and the averment that the plaintiff was not the owner of the property, but that the same was owned by C. H. Johnson and V. F. Boor and others. Defendant did not file any motion asking that Boor or Johnson be made a party to the suit until after the evidence was all in, and when the cause was ready to be submitted to the jury.

The plaintiff and the terminal company are citizens of Missouri, and the Carmichael Company is a citizen of Indiana. At the close of plaintiff's evidence the court sustained a demurrer on the part of the terminal railway company to plaintiff's evidence. Thereupon the Carmichael Company filed its application and bond for a removal of the cause to the federal court, which application was refused.

The third instruction for plaintiff was as follows:

"The court instructs the jury that if you believe from the evidence that the building of plaintiff and that portion of his lot upon which the same rested was injured (if you find it to have been injured) by reason of the fact that the building was not shored up and protected in time to have averted such injuries, and that the defendant, through its foreman, Hamilton, had assured the plaintiff that defendant would shore up and protect the building, and that plaintiff relied on such assurances, and that defendant negligently and carelessly failed to shore up and protect the building as aforesaid, then your verdict must be for the plaintiff."

And his second instruction embodied the same theory. Defendant's refused instruction No. 10 was as follows:

"The court instructs the jury that there is no evidence in this case that defendant Carmichael Company agreed to protect plaintiff's building or land from damage on account of the excavation of the trench for the new retaining wall mentioned in evidence, and you are instructed that there can be no recovery by plaintiff in this case on that theory."

Haff, Meservey, German & Michaels, of Kansas City, for appellants. W. H. Cloud and Reed & Harvey, all of Kansas City, for respondent.

ROY, C. (after stating the facts as above).

I. The fact that the trustee and beneficiary in the deeds of trust were not joined as plaintiffs herein is no defense to this action. It was said in Matthews v. Railroad, 142 Mo. loc. cit. 658, 44 S. W. 805:

"The deed of trust, then, is really a mere security, and an injury to the freehold is a damage to the grantor, who is, in equity, the real owner, and he is at least a proper party to a suit to recover compensation therefor."

We may concede that the trustee and beneficiary, one or both, may also sue for an injury to the freehold. See Chouteau v. Boughton, 100 Mo. 406, 13 S. W. 877. Still the grantor in the deeds of trust is not united in interest with the trustee and beneficiary so as to require them to be made parties, under R. S. 1909, § 1733. It was held in Little v. Harrington, 71 Mo. 590, that joint owners of personalty should unite in a suit for its conversion. Such joint owners of personalty are united in interest.

Undoubtedly the defendant had the right to proceed by motion timely filed to have the trustee and beneficiary in the deeds of trust made parties to this suit, in order that all the rights of the parties in relation to each other and to the cause of action might be adjudicated and settled in one proceeding, and that the defendant be not vexed with a multiplicity of suits. But the defendant, knowing of the existence of the deeds of trust, made no such motion until after the evidence was all in. It was then too late. What is more, the appellant is not here complaining of the overruling of its motion to make the trustee and beneficiary parties to this suit, but stands on the proposition that plaintiff had no right to sue without making them parties.

II. The trial court properly refused to transfer the cause to the federal court. In Berry v. Railroad, 118 Fed. 911, and in Powers v. Railway Co., 169 U. S. 92, 18 Sup. Ct. 264, 42 L. Ed. 673, it was held that, where the plaintiff voluntarily dismissed as to the resident defendant, the nonresident defendant was entitled to a removal. But in Whitcomb v. Smithson, 175 U. S. 637, 20 Sup. Ct. 248, 44 L. Ed. 303, Fuller, C. J., held that, where the trial court directs a verdict in favor of the resident defendant without the consent of plaintiff, there is no right to a removal.

III. Lord Tenterden, in Wyatt v. Harmon, 3 Barn. & Adol. 874, said:

"It may be true that, if my land adjoins that of another, and I have not, by building, increased the weight upon my soil, and my neighbor digs in his land, so as to occasion mine to fall in, he may be liable to an action."

In Charless v. Rankin, 22 Mo. 566, 66 Am. Dec. 642, Leonard, J., quoted that language, but added:

"When, however, the lateral pressure has been increased by the erection of buildings, it seems to be well settled at common law by authorities that no man has a right to an increased support, unless he has acquired such a servitude by grant or prescription. It is so laid down in the early case of Wilder v. Minsterly, 2 Rolle's Abr. 564."

It was also there said:

"It is to be observed that the defendant was upon his own ground, and in digging upon it exercised an undoubted right of property, which the plaintiff had no right, either by express grant or prescription — by statute or local ordinance — in any way to interfere with or prevent; and although, in exercising his rights, it was certainly his duty to his neighbor to use ordinary care in order to avoid doing him harm, he was...

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22 cases
  • Stith v. Newberry Co., 31563.
    • United States
    • Missouri Supreme Court
    • February 8, 1935
    ... ... Met. St. Ry. Co., 224 Mo. 701, 123 S.W. 820: Ryan v. Kansas City, 232 Mo. 471, 134 S.W. 566; Hausman v. Madison, 85 Wis. 187, 55 N.W ... Craig v. K.C. Terminal Ry. Co., 271 Mo. 516, 197 S.W. 142. (4) There was no ... ...
  • Eurengy v. Equitable Realty Corp.
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    ... ... 629, p. 1113; Matthews v. Mo. Pac. Ry. Co., 142 Mo. 645; Craig v. Ry. Co., 197 S.W. 141, 217 Mo. 516. (2) This suit must fail because of ... 284; Mo. R.E. & L. Co. v. Gibson, 282 Mo. 75, 220 S.W. 676; Terminal Ice & P. Co. v. Am. Fire Ins. Co., 187 S.W. 565; R.S. 1929, secs. 699, ... 277; North K.C. Bridge & Railroad Co. v. Leness, 82 Fed. (2d) 12; City and County of Denver v. Stenger, 295 Fed. 817. (7) The cancellation of ... 867; Anderson v. Hammon, 24 Pac. 229; Howerton v. Kansas Nat. Gas Co., 106 Pac. 51; 16 R.C.L., p. 1115, sec. 632; Stevenson v ... ...
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