Douglass v. Stephens

• Court: United States State Supreme Court of Missouri
• Writing for the Court: SCOTT
• Citation: 18 Mo. 362
• Parties: DOUGLASS, Appellant, v. STEPHENS, Respondent.
• Decision Date: 31 July 1853

18 Mo. 362

DOUGLASS, Appellant,
v.
STEPHENS, Respondent.

Supreme Court of Missouri.

July Term, 1853.

1. A party cannot recover any damages caused by the wrongful act of another, which he might have averted at a trifling expense and by reasonable exertions.

2. To make a master responsible for damages caused by his servant, it must be shown that they resulted from a wrongful act done by the command of the master, or from the negligence of the servant in transacting the business for which he was employed.

3. Where a record purports only to give the substance of the evidence bearing on particular points, the judgment will not be reversed on the ground that there was no evidence upon which to base a particular instruction, unless the evidence bearing on that instruction is stated, or it appears affirmatively that none was given.

Appeal from Boone Circuit Court.

[18 Mo. 363]

This was an action for damages to the goods of the plaintiff in the cellar of his store, alleged to have been caused by the obstruction of a sewer by the servants of the defendant. It appeared that the plaintiff had a store on the north side of Broadway, in the town of Columbia, and that the defendant had a store nearly opposite, on the south side of the street; that there was a public sewer, constructed by the municipal authorities, leading from the north to the south side of Broadway, through which the water flowed, and that there was a gutter running in front of the said house of the defendant from east to west on the south side of Broadway, which drained the water from the street and sidewalk, and emptied the same into said public sewer through an opening which was some ten or fifteen feet from the front door of the defendant's house; and that there was a private sewer leading from the cellar of plaintiff's store to the public sewer, which drained the water from the cellar.

The record states that there was evidence conducing to show that on the evening of the day next preceding the day upon which the injury complained of was sustained, the clerks and servants of the defendant, while engaged in cleaning the store of defendant and the sidewalk and street in front thereof, threw a mass of rubbish into the gutter and into the opening of the sewer, which was conducted into the sewer, and so obstructed the passage of the water, as to cause it to flow back through plaintiff's private sewer and fill his cellar with water, thereby, damaging his goods; that the water flowed into plaintiff's cellar during the night, and was not discovered by his clerks and servants until about daylight in the morning, and that the plaintiff was absent from home at the time; and that the cleaning away of the rubbish by defendant's servants, was with his consent and by his direction.

The record also states that the defendant gave evidence conducing to show that the damage was not caused by the acts of the defendant's

[18 Mo. 364]

servants, but by a heavy rain; also evidence conducing to show that the clerks of the plaintiff, after the discovery of the water in the cellar, failed to make proper efforts to save the plaintiff's goods from damage, and that if they had made such efforts, the plaintiff would have sustained no loss or damage by reason of the flowing of the water into his cellar, which last evidence was objected to by the plaintiff, but admitted by the court.

The court instructed the jury to find for the defendant, unless they believed the damage complained of resulted from the acts of his servants, and refused to instruct the jury, as asked by plaintiff, to disregard the evidence in relation to the want of proper effort on the part of plaintiff's servants to prevent the damage.

At the instance of the plaintiff, the jury were instructed that, if they believed the damage complained of was caused by the acts of the servants of the defendant, done while engaged in the business of the defendant, the presumption was that they were done with his consent.

At the instance of the defendant, the court gave the following among...