Craig v. Kansas City Terminal Railway Co.
| Decision Date | 16 July 1917 |
| Citation | 197 S.W. 141,271 Mo. 516 |
| Parties | W. D. CRAIG v. KANSAS CITY TERMINAL RAILWAY COMPANY et al.; WILLIAM P. CARMICHAEL COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. O. A. Lucas, Judge.
Reversed and remanded.
Haff Meservey, German & Michaels for appellant.
(1) The trustees or beneficiaries in the deeds of trust were necessary parties. Chouteau v. Boughton, 100 Mo 406; Logan v. Wabash, 43 Mo.App. 71; Heitkamp v Granite Co., 59 Mo.App. 244; Railroad v. Baker, 102 Mo. 560; Thompson v. Railroad, 110 Mo. 163; Siemers v. Schrader, 88 Mo. 20; James v. Worcester, 141 Mass. 361; Stewart v. Finkelstone, 206 Mass. 28, 28 L. R. A. (N. S.) 634; Delano v. Smith, 206 Mass. 365, 30 L. R. A. (N. S.) 474. (2) The motion to transfer the case to the Federal court should have been sustained. Powers v. Railroad, 169 U.S. 92; Berry v. Railroad, 118 F. 911. (3) The matter of Hamilton's so-called "assurances" had no proper place in the case; and if it did have, the question of Hamilton's authority to make them was a jury question. Adv. Co. v. Wanamaker & Brown, 115 Mo.App. 295; McGraw v. O'Neil, 123 Mo.App. 691; Hodkins v. Machinery Co., 161 Mo.App. 87; Larson v. St. Ry. Co., 110 Mo. 234 Prevost v. Ice Co., 185 Pa. 617; Obert v. Dunn, 140 Mo. 476; Walters v. Hamilton, 75 Mo.App. 244. (4) Defendant owed plaintiff no legal duty to shore up or protect the building. Obert v. Dunn, 140 Mo. 476; Meat Co. v. Foster, 159 Mo.App. 537; Gates v. Fulkerson, 129 Mo.App. 620; Schumacher v. Breweries Co., 247 Mo. 141; Larson v. Railroad, 110 Mo. 252; Glenn v. Hill, 210 Mo. 291; Cooper v. Const. Co., 231 Pa. 557. (5) The court erred in refusing to instruct that it was plaintiff's duty to shore up the Craig building. Obert v. Dunn, 140 Mo. 476; Larson v. Railroad, 110 Mo. 252; Burk Bros. Co. v. Foster, 159 App. 537; Teepen v. Taylor, 141 Mo.App. 282; Evans v. Railroad, 222 Mo. 455; Ballentine v. Railroad, 40 Mo. 491; Turner v. Haar, 114 Mo. 335; Brewing Assn. v. Talbot, 141 Mo. 674; Graney v. Railroad, 157 Mo. 666; Fuchs v. St. Louis, 167 Mo. 620; Bowen v. Railroad, 95 Mo. 268; 1 Ency. of Ev. 209. (6) No notice to Craig as to intention to excavate was necessary. Burk Bros. Co. v. Foster, 159 Mo.App. 537.
W. H. Cloud and Reed & Harvey for respondent.
(1) The trustees or beneficiaries in the deed of trust were not necessary parties. Logan v. Railroad, 43 Mo.App. 71; Masterson v. Railroad, 72 Mo. 347; Woods v. Hilderbrand, 46 Mo. 284; Kennet v. Plummer, 28 Mo. 145; Hardwick v. Jones, 65 Mo. 60; Johnson v. Houston, 47 Mo. 231; Chouteau v. Boughton, 100 Mo. 406; 27 Cyc. 1272; Elvins v. Delaware Co., 63 N. J. L. 243. (2) The court properly refused to transfer the case to the Federal court. Berry v. Railroad, 118 F. 911; Powers v. Railroad, 169 U.S. 92; Whitcomb v. Smithson, 175 U.S. 637. (3) The instructions properly assumed foreman Hamilton's authority to make the assurances of protection claimed by respondent to have been made. (a) His authority was a conceded fact in the case. Davidson v. Transit Co., 211 Mo. 356. (b) It was unnecessary for respondent to show the exact extent of Hamilton's authority. Garretzen v. Duenckel, 50 Mo. 104; Barree v. Cape Girardeau, 197 Mo. 391; Douglass v. Stevens, 18 Mo. 362; Minter v. Railroad, 41 Mo. 503; Perkins v. Railroad, 55 Mo. 201; Harriman v. Stowe, 57 Mo. 93; Ephland v. Railroad, 137 Mo. 187; Compher v. Telephone Co., 127 Mo.App. 553; Mechem on Agents, sec. 734; Tiffany on Agents, p. 274. (4) The Carmichael Company owed to respondent the duty to excavate and construct in a careful manner. (a) It was responsible for any negligence. Gerst v. St. Louis, 185 Mo. 208; Charless v. Rankin, 22 Mo. 573; Larson v. Metropolitan, 110 Mo. 234; Obert v. Dunne, 140 Mo. 476; McGrath v. St. Louis, 215 Mo. 209; Eades v. Gaines, 58 Mo.App. 586; Walters v. Hamilton, 75 Mo.App. 237. (b) It failed to do the work of construction in sections, but, on the contrary, it had open for almost, if not the entire length of the Craig lot, a trench before the construction of the retaining wall. Larson v. Metropolitan, 110 Mo. 234; Obert v. Dunn, 140 Mo. 476. (c) It assured respondent that it would protect his building by shoring, but failed to do so. Walters v. Hamilton, 75 Mo.App. 237; Larson v. Metropolitan, 110 Mo. 244; Gildersleeve v. Hammond, 109 Mich. 439.
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 Railroad 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 $ 2500 by plaintiff, and a judgment in his favor for the $ 7500.
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 $ 4000, the other for $ 2500, 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 thirty-five feet deep, with a double track at about the center of the right of way, which was a hundred and twenty-five 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 twenty-five feet from plaintiff's building. The sides of the excavation were braced by sheet piles three inches thick, driven down to rock and supported by longitudinal and cross beams. From four to seven 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 Number 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...
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