Ewen v. Hart
| Decision Date | 07 April 1914 |
| Parties | MATHIAS EWEN et al., Plaintiffs in Error, v. EDWARD S. HART et al., Defendants in Error |
| Court | Missouri Court of Appeals |
March 2, 1914, Argued and Submitted
Error to St. Louis County Circuit Court.--Hon. G. A. Wurdeman Judge.
AFFIRMED.
Judgment affirmed.
Eugene Hale for plaintiffs in error.
(1) The trial court erred in sustaining defendant's Hart's and Webster Groves' motion at the close of plaintiff's case, in words and figures as follows "Now comes Edward S. Hart and city of Webster Groves, by their attorney, and requests the court to instruct the jury that they must find for the said defendants upon the failures of plaintiffs to offer any evidence as against them or to connect them with the alleged trespass." Plaintiffs' testimony produced up to this point of the trial was more strongly in favor of holding the defendant Hart and the city of Webster Groves than it was against the defendant McMahon the contractor; and all defendants were equally bound by their joint plea of confession and avoidance. It is the well-established rule in this State that a general denial is overcome by a subsequent confession and avoidance. Aull v. Railroad, 136 Mo.App. 291; Pierce v. May Co., 83 Mo.App. 470. The action was one sounding in trespass, and not only is the one who does the work without a valid ordinance a trespasser, but the city officials who are present from time to time superintending and encouraging the work are likewise trespassers. Faust v. Pope, 132 Mo.App. 287; Cox v. Railroad, 125 Mo.App. 356. (2) The trial court erred in the admission of defendants' exhibit number 1 in evidence, a communication passing between the co-defendants and on the reverse side of which contained a memorandum: The principal plaintiff in the case at bar, to-wit: Kate Ewen, is not shown by the exhibit itself or by extrinsic evidence elsewhere in the record to have any connection with said paper or defendants' exhibit 1. (3) The court erred in admitting in evidence ordinance number 467, and allowing the same to be read to the jury, when said ordinance on its face showed that it was never approved by the mayor, and no certificate of its force and effect ever having been produced. (4) The court erred in permitting counsel as a witness for defendants, over the objections of plaintiffs, to read from the minutes of the journal of the board of aldermen, without ever having said minutes properly identified in support of an alleged ordinance number 467. And the court erred and prejudiced the jury against plaintiffs by his uncalled-for remark on page 32 of abstract: (5) The trial court erred in refusing plaintiffs' instructions, instructions refused 1, 2 and 3. (6) The trial court erred in giving defendants' instructions number 2 and number 4. (7) The trial court erred in giving court's instruction number 1. Pratt v. Railroad, 130 Mo.App. 175; Cox v. Railroad, 123 Mo.App. 356.
S. D. Hodgdon and E. G. Curtis attorneys for defendants in error.
A plea of confession and avoidance only overcomes a general denial insofar as one is inconsistent with the other. McCormick v. Kaye, 41 Mo.App. 263; Ledbetter v. Ledbetter, 88 Mo. 60; Atterbury & Nichols v. Hendricks, 127 Mo.App. 47.
This is an action by plaintiffs, who state in their petition that they were "lawfully possessed of and in possession of" certain real estate, consisting of three lots in Tuxedo Park in the city of Webster Groves, and that defendants, on the day named, with force and arms, entered upon the premises of plaintiffs and dug and excavated for the laying off, and did lay, a sewer, or sewers, diagonally across the premises, contrary to the form of the statute in such case made and provided; that by reason of the excavation and laying of the sewer or sewers, the premises have been made totally unfit for building purposes, and plaintiffs have been damaged in the sum of $ 1500. They ask judgment "for treble damages as were occasioned by the acts of defendants, together with costs."
The abstract sets out that the defendants, "further answering," aver that the sewer was laid along a natural watercourse, with the consent of plaintiffs and on a right of way condemned by the city of Webster Groves for sewer purposes. It appears by the briefs and statements of counsel that the answer also contained a general denial.
The reply filed was a general denial. The cause went to trial before the court and a jury and resulted in a verdict in favor of defendants. Filing a motion for new trial and excepting to that being overruled, plaintiffs sued out a writ of error from this court.
There are eight points made in support of the contention that the action of the circuit court should be reversed and the cause remanded.
The first is, that the court erred in sustaining a demurrer of defendants, the city of Webster Groves and Hart, at the close of plaintiffs' case in chief. In support of this contention it is urged that the general denial is overcome by a subsequent confession and avoidance, and that as the evidence showed that these two defendants were present from time to time in superintending and encouraging the work, they were joint trespassers. The first of these propositions cannot be sustained. There is nothing inconsistent in joining with the denial of having committed a trespass, an averment of facts which, if true, as for instance, a license or a lawful condemnation, controverts the averment of no trespass. Nor did these denials shift the burden of proof. As to the second proposition above, it is true that where parties are present or assist in the commission of a trespass, all who participate in it are liable, either jointly or severally, but in the case at bar when plaintiffs closed in chief there was a total failure of evidence connecting either the city of Webster Groves or defendant Hart with any trespass upon this property, so that the demurrer to the evidence, so far as they were concerned and as the evidence then stood, was properly sustained.
The second point made is that the court erred in the admission of defendants' Exhibit "No. 1," in evidence, for the reason, as it is alleged that one of the plaintiffs in the case, Mrs. Kate Ewen, is not shown, either by this exhibit or by any other evidence to have been connected with that paper or assented to its execution. This Exhibit "No. 1" referred to is a communication addressed to Mr. Hart, the mayor of the city of Webster Groves by Mr. McMahon, the contractor for the construction of the sewer, in which Mr. McMahon sets out that his contract calls for the placing of the ground over the ditches in which the sewers are laid in as good condition as before work was begun, and that "in regard to the laying of the sewers through the properties of J. C. Davison and M. Ewen in 'Block 18'--I will remove all spauls (spalls) from premises, level all ditches, and repair all damage caused to fences or property, 'including the replacing of any fruit trees that may be damaged by the work or workmen, to the satisfaction of yourself and the sewer commissioner." Below this was a note addressed to Messrs. J. D. Davison and M. Ewen, signed by the mayor, in which he writes: "I think this statement should be satisfactory to you both and should remove any prejudice against the sewer work being done." On the other side of this paper was written after the date: "This agreement is satisfactory to me," and this is signed by Messrs. J. D. Davison and M. Ewen.
It was in evidence that there was a controversy between the city authorities and the owners of lots in this block about the construction of this sewer through their premises and at a conference between the parties, at which plaintiff Mathias Ewen was present, the above agreement was signed.
The objection on the part of learned counsel for plaintiffs in error to the reception of this in evidence and to its probative value, is that the plaintiff, Mrs. Kate Ewen, had not signed it. It is stated in the abstract that plaintiffs husband and wife, "through deeds vesting title by entirety in both plaintiffs" to the lots had instituted this suit and it is alleged, in the statement and argument of counsel for plaintiffs, that this had been proved. We are compelled to say, on a very careful reading of the testimony as abstracted by that learned counsel, that there is nothing whatever in the testimony to sustain this contention. The nearest approach to it occurs in the testimony of the plaintiff, Mr. Ewen, who, under direct examination, stated he was 61 years old; lived in Webster Groves; had lived there over four years, and he then says: "We own four lots in Tuxedo boulevard, and two lots on Clara avenue--lots 29, 30 and 31, situate in block number 18." That is no proof of title in himself and wife and is the only testimony in the whole record where the word "we" occurs, with reference to the ownership of the lots. It is not even alleged in the petition, or in evidence, that plaintiffs were husband and wife, so that who "we"...
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