Curtis v. Fruin-Colnon Contracting Co., FRUIN-COLNON

• Decision Date: 10 November 1952
• Docket Number: FRUIN-COLNON,No. 1,No. 42761,42761,1
• Citation: 363 Mo. 676,253 S.W.2d 158
• Parties: CURTIS et al. v.CONTRACTING CO
• Court: Missouri Supreme Court

Page 158

253 S.W.2d 158

363 Mo. 676

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

No. 42761.

Supreme Court of Missouri, Division No. 1.

Nov. 10, 1952.

Motion for Rehearing or to Transfer to Court en Banc Denied

Dec. 8, 1952.

J. D. Leritz, St. Louis, for appellant, Fruin-Colnon contracting co.

Chelsea O. Inman and Charles E. Gray, St. Louis, for respondents.

HYDE, Presiding Judge.

Action for trespassing on plaintiffs' land and damaging plaintiffs' building in East St. Louis, Illinois. Plaintiffs had a verdict for $8,000, and defendant has appealed from the judgment entered. It is contended that plaintiffs did not make a jury case; that instructions 1 and 3 were erroneous; that there were erroneous rulings on evidence, and that the verdict was excessive.

Plaintiffs owned a one story five room brick building, about 40 feet long, built about 1905, which faced south on the north side of State Street. It was one of three buildings in the same yard owned by plaintiffs. The front part of this building was used as a doctor's office by Dr. Winning, and the back part and basement as living quarters by Mr. and Mrs. Shumway. Mrs. Shumway took care of the office. In the fall of 1945, defendant began construction of a Sears-Roebuck store with a parking lot west of plaintiffs' property. To build a retaining wall around the parking lot, defendant (without asking plaintiffs' permission) dug a ditch partly on plaintiffs' property (as much as 18 inches), which was less than two feet from the north part of their building and about seven feet from the south part. (The north part of the building had an L about 27 1/2 feet wide which extended about six feet farther west than the south part.) According to plaintiffs' evidence, this ditch was about three feet wide and about four feet deep and was dug along the west side of plaintiffs' building in May 1946. The ditch had no outlet and the soil was sandy and porous. There was considerable rain during the spring and summer and water collected in the ditch and seeped from it into the ground.

There were very heavy rains in August 1946. On August 3rd, the rainfall was 1.50 inches, on August 5th 3.60 inches, on August 14th 3.44 inches, on August 15th 7.71 inches, and on August 16th 3.71 inches. The Weather Bureau records showed that 8.48 inches fell during one 24 hour period and that this was the greatest 24 hour rainfall on record at East St. Louis. The records also stated: 'Rainfall amounts of 8 inches or more during 24 hour periods do not appear frequently over Illinois, but statewide records show enough occurrences to prevent the event from being considered unusual.'

On August 15th, Mrs. Shumway heard a loud popping and cracking of the building and immediately thereafter saw the basement fill with water. The foundation adjacent to the ditch cracked, and the water from the ditch drained into the basement. The side of the building adjacent to the ditch then settled from two to five inches. The basement wall cracked in several places, and the building wall above cracked throughout on the western side. The plaster of the interior was considerably damaged, and the windows and doors on the western side of the building were so out of line that they could not be opened and closed. The floor on the western side pulled away from the walls. Prior to this sinking of the building and the cracking of the foundation, no water had ever been in the basement, and after the ditch was filled by the defendant, no water has since entered the basement. Plaintiffs' evidence also showed that no water entered the basements of their two other buildings with the same back yard but farther away from the ditch. Plaintiffs made temporary repairs by filling the cracks with cement and trimming some of the windows and doors so that they could be used; and supports for the floors were placed in the basement. Plaintiffs had estimates of $9200 and $10,000 on the cost of complete repairs. These estimates were based on taking down the west wall and rebuilding it mostly with new brick (which was said to be a more economical method than cleaning the old brick) but it was stated that this would result in a better wall than the old one was before it was damaged. The evidence as to the condition of the building before August 15, 1946 was conflicting.

Defendant says a jury case was not made because there was no substantial evidence that it failed to exercise ordinary care in excavating and maintaining the ditch or that the ditch was the proximate cause of the damage to plaintiffs' building, citing Merlo v. Public Service Co., 381 Ill. 300, 45 N.E.2d 665; Illinois Central R. Co. v. Oswald, 338 Ill. 270, 170 N.E. 247; Goodlander Mill Co. v. Standard Oil Co., 7 Cir., 63 F. 400; and Milostan v. City of Chicago, 148 Ill.App. 540; and because the evidence established that the sole proximate cause was an Act of God, an unusual and extraordinary rainstorm. Citing 1 Shearman and Redfield on Negligence 89, Sec. 32; A.L.I. Restatement of Torts, Sec. 451; and Southern Ry. Co. v. Jefferson, 185 Va. 384, 385, 38 S.W.2d 334. The law of Illinois is, of course, the law applicable to this case.

There is no contention in this case, and no evidence to support such a contention, that such an excavation made by defendant on adjoining land would have disturbed plaintiffs' soil in its natural state. Plaintiffs' case is based on both trespass and negligence. Defendant did trespass by digging and maintaining approximately half of the ditch on plaintiffs' land without asking their permission. 52 Am.Jur. 844-848, Sec's. 12-14; 63 C.J. 893-894, Sec's. 11-12; A.L.I. Restatement of Torts, Sec's. 158-159. Regardless of negligence, defendant is responsible for damages to plaintiffs' property naturally and necessarily resulting from the trespass. 52 Am.Jur. 873-875, Secs. 49-50; 63 C.J. 1049, Sec. 251; Jeffries v. Williams, 5 Exch. 792; 155 Eng. Reprint 347; City of Chicago v. Troy Laundry Machinery Co., 7 Cir., 162 F. 678, 89 C.C.A. 470. The negligence charged is leaving the entire ditch open for about three months, in soil of this type, without an outlet, when water accumulated in it and seeped away under the foundation of plaintiffs' building. Such conduct has been held to be actionable negligence, even when the excavation was entirely upon the defendant's property, in Garvy v. Coughlan, 92 Ill.App. 582. See also Best Manufacturing Co. v. Peoria Creamery Co., 226 Ill.App. 60, affirmed 307 Ill. 238, 138 N.E. 684. The question of proximate cause is usually for the jury, see Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950 and cases cited, and may be shown by circumstantial evidence. See Pentecost v. St. Louis Merchants' Bridge Terminal R. R. Co., 334 Mo. 572, 66 S.W.2d 533 and cases cited. Upon the facts above stated, and for the reasons hereinafter given, we hold proximate cause (from either the trespass or negligence) was a jury question in this case.

As to the defense of Act of God, Sec. 450, Restatement of Torts gives the rule thus: 'The extraordinary operation of a force of nature, which merely increases or accelerates harm to another which would otherwise have resulted from the actor's negligent conduct, does not prevent the actor from being liable for such harm.' The following example is given, which is appropriate in this case: 'The A Coal Company deposits on the banks of a mountain stream mine refuse, so close to the water that it is likely to be carried down the stream and deposited upon lower riparian lands by the normal spring and autumn freshets. A cloudburst causes an extraordinary flood which carries the refuse with extraordinary speed and in extraordinary volume upon the land of B. The negligent piling of the mine refuse is the legal cause of the entire harm done to B's land.'

Assuming the excessive rainfall in this case as an Act of God, the law of Illinois, which apparently goes beyond the rule of Sec. 451, Restatement of Torts, is stated in Wald v. Pittsburgh, C. C. & St. L. R. Co., 162 Ill. 545, 551, 44 N.E. 888, 889, 35 L.R.A. 356. In that case, a passenger's baggage was lost in the famous Johnstown flood (held by the Court to be an Act of God) and it was held the carrier would be liable if it was negligent in delaying his baggage. In holding there was a jury case, the Court said: 'A loss or injury is due to the act of God when it is occasioned exclusively by natural causes, such as could not be prevented by human care, skill, and foresight and where property committed to a common carrier is brought by the negligence of the carrier under the operation of natural causes that work its destruction, or is, by the negligence of the carrier, exposed to such cause of loss, the carrier is responsible. 'It is universally agreed that, if the damage is caused by the concurring force of the defendant's negligence and some other cause for which he is not responsible, including the act of God, * * * the defendant is nevertheless responsible if his negligence is one of the proximate causes of the damage.' 1 Shear. & R.Neg. (4th Ed.) Sec. 39. The doctrine is thus clearly stated by the supreme court of Missouri in Wolf v. American Express Co., 43 Mo. 421: 'The act of God which excuses the carrier must not only be the proximate cause of the loss, but the better opinion is that it must be the sole cause. And where the loss is caused by the act of God, if the negligence of the carrier mingles with it as an active and cooperative cause, he is still responsible.'' See also Kennedy v. Union Electric Co., 358 Mo. 504, 216 S.W.2d 756; Sandy v. Lake Street Elevated R. R. Co., 235 Ill. 194, 85 N.E. 300; Providence-Washington Ins. Co. v. The Western Union Telegraph Co., 247 Ill. 84, 93 N.E. 134, 30 L.R.A., N.S., 1170.

Our conclusion is that it was a jury question as to whether defendant's conduct directly contributed to cause the damage to plaintiffs' building so that the excessive rainfall was not the sole cause thereof but only increased or...