Flesh v. Lindsay

• Decision Date: 14 March 1893
• Citation: 21 S.W. 907,115 Mo. 1
• Parties: Flesh et al. v. Lindsay et al., Appellants
• Court: Missouri Supreme Court

21 S.W. 907

115 Mo. 1

Flesh et al. v. Lindsay et al., Appellants

Supreme Court of Missouri, Second Division

March 14, 1893

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Reversed and remanded.

Boyle & Adams for appellant.

(1) Prior to November 1, 1889 (when the present Revised Statutes became operative), the law of this state vested in a husband during coverture the possession and control and the exclusive right to the rents, issues and products of his wife's real estate, owned by her at the time of the marriage, or coming to her at any time during the coverture. Bledsoe v. Simms, 53 Mo. 305; Harriman v. Stowe, 57 Mo 93; Cooper v. Ord, 60 Mo. 421; Kanaga v Railroad, 76 Mo. 207; Dyer v. Wittler, 89 Mo. 81; Peck v. Lockridge, 97 Mo. 549; Mueller v. Kaessman, 84 Mo. 323. (2) No act other than the marriage itself is necessary on the part of either the husband or the wife to vest this marital estate in the husband. The law casts it upon him by virtue of the marriage alone. Bishop on Married Women, secs. 529, 537; Dyer v. Wittler, 89 Mo. 81. (3) Not only does the law invest the husband with these marital rights, but it prohibits any divestiture of them through execution for his sole debts, or by any conveyance on his part, unless joined therein by his wife. Any disposition he may attempt to make of them, unless by such joint conveyance with his wife, executed as required by the statute, is null and void. Revised Statutes, 1889, sec. 6868; Revised Statutes, 1879, sec. 3295; General Statutes, 1870, ch. 115, sec. 14; Wannell v. Kem, 51 Mo. 150; McBeth v. Trabue, 69 Mo. 642; Hord v. Taubman, 79 Mo. 101; Mueller v. Kaessman, 84 Mo. 323. (4) If any liability was shown by plaintiff's evidence, it was a liability on the part of Bailey & Sage, who were lessees of the building owned by defendants, and in actual possession and occupancy thereof at the time of and for a considerable period prior to the alleged injury. Grogan v. Foundry Co., 14 Mo.App. 587; Ward v. Fagan, 28 Mo.App. 116; Gilliland v. Railroad, 19 Mo.App. 411; Rich v. Bacterfield, 56 English Common Law, 783; City v. Spalding, 4 Cush. 277; Fisher v. Thiskell, 21 Mich. 1; Leavitt v. Fletcher, 10 Allen, 121. (5) A married woman can have no agent unless she is possessed of a separate estate. Harriman v. Stowe, 57 Mo. 93; Wilcox v. Todd, 64 Mo. 390; Hall v. Callahan, 66 Mo. 316; Hord v. Taubman, 79 Mo. 101; Henry v. Sneed, 99 Mo. 407; State v. Clay, 100 Mo. 571; Story on Agency, sec. 6; Bishop on Married Women, secs. 39, 538, 602. (6) The wife is not liable for torts committed jointly with her husband, nor when committed under his direction or with his knowledge and consent. In such cases the husband alone is liable. Alexander v. Lydick, 80 Mo. 341; Dailey v. Houston, 58 Mo. 361; McKeown v. Johnson, 1 McCord, 578; Bishop on Married Women, secs. 43, 60; Ball v. Bennett, 21 Ind. 427; Leiler v. People, 77 N.Y. 411; Carleton v. Haywood, 49 N.H. 314. (7) Instructions based upon a state of facts not in evidence are erroneous. Turner v. Baker, 42 Mo. 13; Rose v. Spier, 44 Mo. 20; Harper v. Railroad, 44 Mo. 488; Lester v. Railroad, 60 Mo. 265. (8) Instructions presenting issues not raised by the pleadings are erroneous. Camp v. Heelan, 43 Mo. 591; Bank v. Murdock, 62 Mo. 70; Fulkerson v. Thornton, 68 Mo. 468; White v. Chaney, 20 Mo.App. 389. (9) Where the damages claimed are not such as necessarily result from the act complained of they are special damages, and to entitle plaintiff to prove them must be specifically alleged in the petition. Sedgwick on Damages [6 Ed.] 733; Sutherland on Damages, p. 763; Squier v. Gould, 14 Wend. 159; O'Leary v. Rowan, 31 Mo. 117; State ex rel. v. Blackman, 51 Mo. 319.

S. N. Taylor for respondent.

(1) Rights in party walls pass with the land to heirs or assignees without being specially mentioned in the conveyance. Each proprietor owes to the other the duty to do nothing that shall weaken or endanger it. Cooley on Torts [2 Ed.] 440; Brooks v. Curtis, 50 N.Y. 644; Partridge v. Gilbert, 15 N.Y. 606; Eno v. Del Vecchio, 6 Duer, 17; Schilie v. Brokhaus, 80 N.Y. 614; Dowling v. Huming, 20 Md. 180; Crashaw v. Summer, 56 Mo. 517; Hammond v. Schiff, 6 S.E. 753; Henry v. Koch, 80 Ky. 391; Phillips v. Bordman, 4 Allen, 149. (2) Appellant, being the owner of the fee in the land under the married woman's act and the building which she caused to be reconstructed for her use, is responsible for having had it so reconstructed as to weaken the party wall and thus cause a collapse of plaintiff's building, the same as if it were her separate estate. Merrill v. St. Louis, 83 Mo. 253; Merrill v. St. Louis, 12 Mo.App. 475; Robins v. Mount, 4 Robertson (N. Y.), 559; Mueller v. Kaessmann, 84 Mo. 324; Wilson v. Albert, 89 Mo. 542; Handy v. Foley, 121 Mass. 260; Heckle v. Lurvey & Wife, 101 Mass. 345; Marshall v. Oakes, 51 Maine, 308; Burns v. Bangert, 92 Mo. 167; Gilliland v. Gilliland, 96 Mo. 522; Craig v. Van Bebber, 100 Mo. 591; Revised Statutes, sec. 6868. The wife is liable for a tort committed with the knowl edge and consent of her husband and in his presence in all cases now, where she does not act under his coercion. Merrill v. City of St. Louis, 83 Mo. 253; Bishop on Married Women, 258; Merrill v. City of St. Louis, 12 Mo.App. 475-7; Simmons v. Brown, 5 R. I. 306; State v. Cleaves, 59 Me. 302. (3) The court did not err in giving plaintiff's principal instruction. If the only error in an instruction is that it requires one of the parties to prove more than he ought to be required to prove to make out his case, the adverse party cannot complain. Houx v. Batten, 68 Mo. 84; State v. Ware, 69 Mo. 332; Wright v. McPike, 70 Mo. 176; Bank ex rel. v. Gilpin, 105 Mo. 22; Gaty v. Sack, 19 Mo.App. 417. (4) If there was any departure as suggested by counsel for appellant in the evidence from the issues tendered in the pleadings, the appellant adopted the error and had the benefit of a questionable proposition of law, and this prevents a reversal of the case upon that point. Soldani v. Railroad, 23 Mo.App. 522; McGonigal v. Dougherty, 71 Mo. 265; Crutchfield v. Railroad, 64 Mo. 257; Holmes v. Braidwood, 82 Mo. 615; Bank v. Gilpin, 105 Mo. 22; Green v. St. Louis, 106 Mo. 454. (5) The record shows that justice was done in the finding of the jury and the rendition of the judgment. It is a well settled doctrine in this state, when from the whole case it appears that justice has been done, though errors were committed which did not materially affect the merits, the court will not disturb the verdict. Walter v. Cathcart, 18 Mo. 256; Smith v. Culligan, 74 Mo. 388; Drain v. Railroad, 86 Mo. 582; Mauerman v. Railroad, 41 Mo.App. 328. Moreover, the statutes make the above rule imperative upon this court. Revised Statutes, secs. 2100, 2302, 2303.

OPINION

Burgess, J.

This is a suit against Jane Lindsay and her husband, Andrew J. Lindsay, for damages alleged to have been sustained by plaintiffs by reason of wrongful acts alleged to have been committed by defendants in March, 1887.

The petition alleges that plaintiffs, who were co-partners under the name of Flesh & Mook, were lessees and occupants of a certain building, number 414 North Third street, in the city of St. Louis, where they conducted a paint shop business, and which building on May, 30, 1887, without carelessness or negligence on their part, collapsed by the crushing of the north wall thereof; that such north wall was then, and for a long time prior thereto had been used as a party wall between the building so leased by plaintiffs and a certain adjoining building on the north known as 416 North Third street; that said last mentioned building was then, and since the year 1877 had been, owned by the defendant Jane Lindsay, "as her own sole and separate property, free from all claims, debts or liabilities of her said husband; that said Jane Lindsay, so being the owner of said last mentioned building, did, on or about the fifteenth day of March, 1887, and prior thereto, make alterations and repairs in her said building in a negligent, careless, unskillful and unworkmanlike manner, and did carelessly and negligently remove certain studding and supports, whereby an unreasonable amount of pressure was thrown upon said party wall, and did negligently and carelessly cause her said building to be used as a printing house, in which heavy machinery, tools, fixtures and appliances were used upon the second floor thereof, thus weakening and thus causing an undue pressure upon said party wall, and by reason of said several acts of negligence and carelessness by the said Jane Lindsay, defendant, said wall was, on the thirtieth of May, 1887, crushed and caused to fall down, and in its fall was the immediate cause of the falling down of the building so occupied by plaintiffs as a paint store and shop."

It is further alleged that "the immediate cause of the falling of their said building was the careless, negligent and unworkmanlike manner in which defendant, Jane Lindsay, made repairs in her said building, and the negligent and careless manner in which she removed studding, partitions and supports from her said building, and the negligent and careless use to which she put her said building after having thus removed said supports; that her said building was old and the walls weak, and she knew, or in the exercise of reasonable care and diligence might have known, that the use of machinery incident to a printing house would tend to cause the falling of her building and said party wall, and that she was negligent and careless in thus permitting said machinery to be used in her said building." The petition then sets forth specifically the damages claimed to have been sustained by plaintiffs by reason of the alleged wrongful acts,...