Curtis v. Fruin-Colnon Contracting Co.

• Decision Date: 20 July 1954
• Docket Number: No. 28897,FRUIN-COLNON,28897
• Citation: 270 S.W.2d 537
• Parties: CURTIS et al. v.CONTRACTING CO.
• Court: Missouri Court of Appeals

Page 537

270 S.W.2d 537

CURTIS et al. v. FRUIN-COLNON CONTRACTING CO.

No. 28897.

St. Louis Court of Appeals, Missouri.

July 20, 1954.

Rehearing Denied Sept. 10, 1954.

J. D. Leritz, St. Louis, for appellant.

Charles E. Gray, St. Louis, for respondents.

WOLFE, Commissioner.

This is an action for trespass on plaintiffs' land which resulted in damage to a building upon it. The appeal before us is from the second trial of the case. When it was first tried there was a verdict for the plaintiffs in the sum of $8,000 and the defendant appealed to the Supreme Court, where the judgment was reversed because the plaintiffs' proof was insufficient as to the amount of damages. The case was remanded for trial on the issue of damages only. The trial upon this issue resulted in a verdict for $7,400 and from the resulting judgment the defendant prosecutes this appeal.

The building damaged was located on State Street in East St. Louis, Illinois. The damage resulted from the defendant digging a ditch partly upon plaintiffs' property. The ditch was the preliminary step in the construction of a retaining wall for a parking lot connecting with a Sears-Orebuck store which the defendant was constructing. The ditch was left open for some time and partly filled with water during a heavy rainfall. The side of plaintiffs' building was caused to settle toward the ditch making cracks in the basement and building wall and throwing some windows and doors out of line so that they would not properly open or close. This briefly summarizes the facts on the first trial as they relate to the liability of the defendant and a fully detailed statement of them may be found in Curtis v. Fruin-Colnon Contracting Co., 363 Mo. 676, 253 S.W.2d 158. The trial here under consideration was limited, as stated, to the question of damages alone.

The building in question, which was constructed in 1906, was in a commercial section of East St. Louis. It was a one-story five-room brick building with a basement and bathroom. It had been occupied as a doctor's office with the three front rooms being used for that purpose and the other rooms served as living quarters for the custodian of the doctor's office. The building faced south and it was along the west wall that the ditch was dug. Much of the evidence consists of photographs of the house showing how the wall had settled and cracked and that the windows were out of line.

A Mr. Degenhardt, testifying for the plaintiffs, stated that there was a large crack in the brickwork over the opening into the hall. He said that the stonework of the foundation was irregular, due to the settling, and that there was a large crack in the stonework that ran up through the brick above it. It was about an eighth of an inch wide. The crack went up to a window and then appeared again toward the top of the wall. The window sills were out of level. On the inside the floor slanted toward the west well and the baseboard and trim had separated to an extent where they were completely out of joint. The doors would not close. The witness stated that in the basement there was a crack where a beam rested upon the foundation wall and there were other cracks in the foundation. In the basement floor there were some cracks and the floor was slightly titled toward the west wall. He said that to repair the damage he would be required to brace the floor and ceiling joists from the inside and then take down all of the brickwork and the stonework of the basement on the west side. He would then put in additional footings and rebuild the wall. He stated that the work required to be done would cost $9200. Another builder testified that the reasonable cost of repairing the building was $10,000.

A Miss Meredith, who was a dealer in real estate and had known about the building before and after the damage to it, stated that before the damage the building, exclusive of the land, was worth about $16,000 and that after the damage it was worth from $1,500 to $2,000. Another witness placed the variance between the value of the property before and after the occurrence at $13,000, and another stated that the value had dropped from $12,000 to $15,000.

The defendant called three witnesses, one of whom testified that the loss of value was between $2,000 to $3,000, another placed it at $1,300, and still another at $1,000.

The first point raised is that the plaintiffs prejudicially brought to the jury's attention matters that related to the defendant's liability and that the trial, under the mandate of the Supreme Court, should have been limited to damages. The gravamen of the complaint is that, since the case was remanded for trial on the issue of damages only, any evidence or matters which showed the defendant liable for the damages were prejudicial. It is stated that the court erred in refusing to declare a mistrial and to discharge the jury when counsel for the plaintiffs in his opening statement said that the plaintiffs would prove that the defendant dug a ditch upon plaintiffs' property. It is also asserted that the court erroneously permitted counsel to state the dimensions of the ditch and that plaintiff Curtis testified that the ditch was dug on her mother's property without permission. Some photographs put in evidence the defendant also considers prejudicial because they show the ditch as well as the...