De Donato v. Morrison

• Decision Date: 12 March 1901
• Citation: 160 Mo. 581,61 S.W. 641
• Parties: DE DONATO v. MORRISON et al.
• Court: Missouri Supreme Court

61 S.W. 641

160 Mo. 581

DE DONATO v. MORRISON et al.

Supreme Court of Missouri, Division No. 1.

March 12, 1901.

LANDLORD AND TENANT — EVICTION — DAMAGES — INSTRUCTIONS — APPEAL.

1. Where all the essential features of a requested instruction are included in an instruction given, its refusal is not error.

2. The refusal to give a requested instruction predicated on a theory which is not included in the issues is not error.

3. Where a tenant sues his landlord for wrongful eviction, resulting from the landlord taking possession and shoring up the walls of the building to prevent an injury thereto threatened by the removal of a building of an adjoining property owner, and damage is sought for injuries caused by dirt, it is not error to instruct that there can be no recovery for such injury resulting from the tearing down of the building belonging to the adjoining owner, since the defendant and such owner are not joint tort feasors.

4. Where a tenant sues his landlord for an eviction, and an injury to the tenant's goods resulting from dirt is alleged as an element of damages, but there is evidence that such injury might have resulted from other causes, a judgment denying damages therefor will not be reversed.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Action by Florian De Donato against Adele S. Morrison and others for wrongful eviction From the judgment rendered, the plaintiff appeals. Affirmed.

In July, 1896, defendants were the owners of building No. 519 on Olive street, in the city of St. Louis. The plaintiff was their tenant from month to month, and James M. Carpenter was the owner of the premises No. 517, adjoining the same on the east. On the 11th day of that month the following notice was served on the plaintiff: "St. Louis, Mo., July 11th, 1896. F. De Donato, Esq., 519 Olive St., City — Dear Sir: Please take notice that I am about to excavate for a new building on my lot in city block 117, adjoining on the east property which you rent from Mrs. Morrison and Mrs. Peugnet; and I hereby notify you to protect your walls, stock of goods, and all persons in and about your premises from any damage that may accrue to you or them by reason of said excavation and building, as I will not be responsible for any damage done your walls, stock of goods, or to persons on your premises by reason of said excavation and building. Yours, etc., Jas. M. Carpenter." And on the same day he served each of the defendants with a notice, of which the following is a copy: "Dear Madam: I am notified by Mr. Carpenter that the east wall of the store No. 519 Olive street, rented from you, is over his line about three inches, and, as there is no foundation wall under said store, said wall may fall when he excavates his cellar, about twelve feet deep, adjoining. Should that occur, great damage will be done me, and I shall hold you responsible to me for every damage to my stock and business. Respectfully, F. De Donato, 519 Olive Street, City." To which the defendants on the 13th day of July responded as follows: "St. Louis, Mo., July 13th, 1896. F. De Donato, Esq., No. 519 Olive St., City — Dear Sir: Your note bearing date July 11th, 1896, in which you say Mr. J. M. Carpenter, the owner of the property adjoining your store on the east, has notified you of the dangerous condition of walls between No. 517 and No. 519 Olive St. Therefore please take notice that from the dangerous condition of the property occupied by you, No. 519 Olive St., you are hereby notified to vacate (at once), and we will not be responsible for any loss or damage sustained by you or your employés by your failure to vacate at once. Yours, Adele S. Morrison, by R. M. Noonan, Agt. Virginia S. Peugnet, by R. M. Noonan, Agt." As a result of this correspondence the employes of the defendants at the date last mentioned entered upon the leased premises, and commenced shoring up the walls of the endangered building from the inside, and the defendant commenced moving his stock of goods from the building, and within the next five or six days both of these undertakings were consummated. Afterwards, on the 16th of September, 1896, this suit was instituted; the plaintiff, in his petition, charging: "That on said day, without cause, peremptorily and without notice to plaintiff, defendants evicted him and took possession of said store, by placing therein many mechanics and laborers, who, under the direction of defendants, at once proceeded to tear up the floor and to move out of place plaintiff's trade fixtures; and defendants then and there, against the protest of plaintiff, rendered said store wholly unfit for occupancy, and compelled plaintiff to vacate the same immediately. That such action of defendants in so taking possession of said premises and wrecking the same, and in forcing plaintiff to vacate them, caused plaintiff's goods to be covered with dirt and dust, and otherwise hurt, and rendered less valuable and less salable, his business to be interrupted, and his fixtures, tools, and implements hurt and destroyed, all to his damage in the sum of five thousand dollars, for which he prays judgment." The answer of defendants was a general denial; averments that plaintiff voluntarily abandoned the premises, and that, if plaintiff sustained any damage as alleged, it was the result of his own negligence. The answer also contains the further defense that the work was done by an independent contractor, but this defense was abandoned on the trial. We have gone through all the record before us, and fail to find any substantial error in the rulings of the court on the admission of evidence.

The case on the main issues was submitted to the jury on the following instructions, which have been numbered anew in part, for the sake of convenience: "(1) The court instructs the jury that upon receipt of the notice from the plaintiff to the defendants dated July 11, 1896, and read in evidence, defendants had a right to proceed in a reasonable and proper manner to protect the wall in question, — being the east wall of building No. 519 Olive street, — and to occupy so much of said building, if any, as the evidence shows was reasonably necessary for that purpose. But before doing anything in said building that would be likely to injure plaintiff's stock of goods therein, without the consent of plaintiff, it was the duty of defendants to give plaintiff notice and such reasonable time to remove his stock of goods as the circumstances, as shown by the evidence, would reasonably admit of. If the jury believe from all the evidence that defendants could, under all the facts and circumstances given in evidence, reasonably have given such notice and time to plaintiff, and failed to do so, and proceeded with the work of shoring up and protecting said wall from within the storerooms...