Faust v. Pope

• Decision Date: 08 June 1908
• Citation: 111 S.W. 878,132 Mo.App. 287
• Parties: JOHN FAUST, Respondent, v. JOSEPH POPE et al., Appellants
• Court: Kansas Court of Appeals

111 S.W. 878

132 Mo.App. 287

JOHN FAUST, Respondent, v. JOSEPH POPE et al., Appellants

Court of Appeals of Missouri, Kansas City

June 8, 1908

Appeal from Cole Circuit Court.--Hon. William H. Martin, Judge.

REVERSED AND REMANDED.

Jas. H Lay & W. S. Pope for appellants.

(1) If the plaintiff's theory of the case is correct, the measure of damages might be compensation for actual loss or difference in its market value immediately before the injury and the like value after the injury is complete; but surely he could not be entitled to both. Albers v. Merchants Exchange, 138 Mo. 140; Trust Co. v. Bambrick, 149 Mo. 560; Matthews v. Railroad, 142 Mo. 645; Bungenstock v. Drainage District, 163 Mo. 198; Robinson v. St. Joseph, 97 Mo.App. 503. (2) Appellants take the position that the action of the city council inviting bids, the response thereto by the defendant Pope, the acceptance of his proposition by the city council the action of the council authorizing the mayor to enter into the contract, and his action, for and on behalf of the city in making said contract, is sufficient to release him from liability, as well as the defendant, Pope, and to fix the liability for damages on the city. R. S. 1899, secs. 5860, 5861. (3) As a rule, public officers are not responsible on contracts made by them in their official capacity, or for error in judgment when honestly exercised. Tutt v. Hobbs, 17 Mo. 486; Reed v. Conway, 20 Mo. 22; Shoettgen v. Wilson, 48 Mo. 253; McCutchen v. Windsor, 55 Mo. 149; Humphrey v. Jones, 71 Mo. 62; St. Joseph v. McCabe, 58 Mo.App. 542; Cook v. Hetcht, 64 Mo.App. 273; Williams v. Elliott, 76 Mo.App. 8; Klosterman v. Loos, 58 Mo. 290.

Silver & Brown for respondent.

(1) The excavation of Monroe street and the reduction of its grade not having been done under an ordinance of the city, but merely under a resolution of the council, the defendants were trespassers on the street and wrongdoers, and are personally liable to plaintiff in this action for the injuries complained of by him. Reed v. Peck, 165 Mo. 333; Rives v. Columbia, 80 Mo.App. 173; Clay v. Beard, 85 Mo.App. 237; Clay v. Mexico, 92 Mo.App. 611; Dries v. St. Joseph, 98 Mo.App. 611. (2) "If a person sustains special damage peculiar to himself from the obstruction of a highway, whether it be to his person or his property, he may maintain an action therefor. Thus obstructing and cutting off the access to a person's place of business is a special injury for which he may recover damages in an action at law." Elliott on Roads and Streets, pp. 500-1. (3) The defendants were also liable for the injuries sustained by the blasting of the rock done in the performance of the work on Monroe street. The vibration and concussion caused by the explosions occasioned permanent injury to plaintiff's dwelling house, for which the defendants are liable. Hoffman v. Walsh, 117 Mo.App. 278; Cooley on Torts (2 Ed.); Scott v. Bay, 3 Md. 431; Colton v. Onderdonk, 69 Cal. 155; Casey v. Bridge Co., 114 Mo.App. 47. (4) The admissions in answer of defendant Wallau, and the evidence as to his participation in the work on Monroe street were amply sufficient to submit to the jury the question of his being a joint wrongdoer. Reed v. Peck, 165 Mo. 333. (5) The court properly instructed the jurors on the matter of damages to plaintiffs premises caused by the reduction of the grade of Monroe street at its intersection with the alley. McMillan v. Columbia, 122 Mo.App. 35; Trust Co. v. Bambrick, 149 Mo. 560; Damman v. St. Louis, 152 Mo. 186. Stickford v. St. Louis, 75 Mo. 309; Clay v. Mexico, 92 Mo.App. 611; Copeland v. Railroad, 175 Mo. 678.

OPINION

JOHNSON, J.

This is a suit to recover damages resulting to plaintiff from the excavation of a public street to bring it to the established grade. Defendant Pope was the contractor who did the work and defendant Wallau was the mayor of the city and signed the contract in that capacity but is sued as an individual. Verdict and judgment were for plaintiff and against both defendants in the sum of $ 575.

Facts necessary to be considered thus may be stated: Plaintiff owned and occupied as a residence a lot in the city of Jefferson, a city of the third class. His house contained four rooms, was built of brick and faced south on an alley which ran east and west. The lot was 45 by 75 feet, abutted on the alley and had no other outlet. Its east line ran parallel to the west line of Monroe street, thirty-seven feet distant therefrom. The block which the alley bisected was bounded on the east by Monroe street and on the west by Madison street, both public thoroughfares. The alley was too narrow for wagons and similar vehicles to turn around in it and the only practical method drivers of such conveyances could follow in using it was to enter from one end and drive out at the other without attempting to turn. Before the excavation of Monroe street, this method was followed and the property of plaintiff was accessible to vehicles. The grade of Monroe street was established by ordinance passed in 1903. May 7, 1906, the city council passed a resolution instructing the city engineer "to ask contractors to submit bids for using the stone out of Monroe street between Elm and Dunklin." May 17th, a resolution was adopted to accept the bid of defendant Pope and the mayor was authorized to enter into a contract with him which was done on May 25th. The parties admitted at the trial "that no ordinance was passed authorizing the opening of Monroe street or grading the same from Elm to Dunklin before the 26th day of November, 1906. It is also admitted by both parties that the work done prior to that time was done by Mr. Pope under a contract with the city made and entered into under the provisions of the resolution that was passed in May, 1906."

The evidence of plaintiff shows that without authority other than that afforded by the resolution, defendant Pope, under the personal supervision of defendant Wallau, excavated the street to a depth of about thirty feet below its natural surface and thereby entirely cut off access therefrom to the alley. As a result, vehicles being unable to turn around in the alley could not use it at all. Further, it appears that in excavating, a large mass of rock was removed, that defendant Pope resorted to blasting to aid in that work and that plaintiff's house was greatly damaged by the concussions and vibrations produced by the explosions of powder and dynamite and by falling stones. The evidence introduced by defendants is to the effect that the means of ingress and egress to and from plaintiff's property were not substantially affected by the closing of the east end of the alley and that the blasting was done so carefully that it did no damage to the house.

Two of the instructions given at the request of plaintiff are as follows: "The jurors are instructed that if they find and believe from the evidence before them in this case that plaintiff is now and was during the year 1906 the owner of the house and premises referred to in the evidence, and that said premises are a part of Inlot No. 822 of the city of Jefferson, Missouri, and that the defendants, without an ordinance of said city authorizing them so to do, entered (as claimed by plaintiff) upon that part of Monroe street in said city lying at the intersection of said street with the alley (referred to in the evidence) on which plaintiff's said premises abut or front, and did excavate and remove the rock and earth (or cause the same to be done) in said Monroe street at and along the place of its intersection with said alley and did thereby, prior to November 26, 1906, so reduce the natural grade or surface grade of Monroe street at the place of said intersection with said alley as to deprive plaintiff of access from said Monroe street by means of said alley to his house and premises situated thereon, and did thereby lessen and decrease the value of plaintiff's said property and premises; then the jury will find the issues for the plaintiff and assess plaintiff's damages on this feature of the case such sum as constitutes the difference between the value of his said property and premises just before the work of said reduction and change of surface grade of Monroe street was begun and its value after said work was done, less the value of any special or peculiar benefits directly resulting to the plaintiff's said premises from the change of grade (at the intersection of Monroe street and the alley referred to in the evidence) complained of by plaintiff in this action.

"The court further instructs the jurors that if they find and believe from the evidence that defendants in the work of excavating the rock and earth on Monroe street, referred to in the evidence, did use dynamite or other explosives for the purpose of blasting and rending the rock in said street where they were so at work, and did thereby cause loose rock and other material to fall on plaintiff's house and premises situated in said Lot 822 of the city of Jefferson, thereby injuring said house and did also by said use of explosives in blasting, cause such shaking and vibration of the earth and concussion in and around plaintiff's said house and premises as to unsettle said house and cause its walls to sever and crack, thereby injuring and impairing the value of said house, then the jury will also, in their verdict, allow plaintiff such reasonable...