Gerst v. City of St. Louis
| Decision Date | 22 December 1904 |
| Parties | GERST v. CITY OF ST. LOUIS et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Warwick Hough Judge.
Affirmed on condition.
Charles W. Bates and Benjamin H. Charles for appellant City of St Louis.
(1) The Heman Construction Company was an independent contractor for the construction of the sewer, and neither it nor its employees were agents or servants of the city of St. Louis and for injuries occasioned third parties by the acts of the contractor or its employees the city is not liable. Charter of St. Louis, art. 6, secs. 15, 27; Barry v. St. Louis, 17 Mo. 121; Blumb v. Kansas City, 84 Mo. 112; Crenshaw v. Ullman, 113 Mo. 639; Independence v. Slack, 134 Mo. 75; Long v. Moore, 107 Mo. 334; Hilsdorg v. St. Louis, 45 Mo. 98; McKinley v. Railroad, 40 Mo.App. 457; Gas Light Co. v. Mercer, 48 Mo.App. 652; Casement v. Brown, 148 U.S. 615; Uppington v. New York, 165 N.Y. 222, 53 L. R. A. 550; Foster v. Chicago, 64 N.E. 322, 8 Mun. Corp. Cases 488. (2) The owner of a lot is entitled to lateral support for the soil in its natural condition only, and not to support for a building placed on it. Obert v. Dunn, 140 Mo. 476; Charless v. Rankin, 22 Mo. 566; Walters v. Hamilton, 75 Mo.App. 237; Larson v. Railroad, 110 Mo. 234, 16 L. R. A. 330; Transp. Co. v. Chicago, 99 U.S. 635. If one about to excavate alongside of an adjoining lot upon which is a building, gives notice to the owner of said lot and building of his intention to excavate, such owner must protect his own property, and the excavator is not liable for injury to said building, so long as he, in excavating, uses such care as would protect the soil of the adjoining lot in its natural condition -- such is reasonable care under the circumstances, which is the test -- no one being liable for doing what he is entitled to do under the law. Charless v. Rankin, 22 Mo. 572. The entire excavation being wholly within the alley, and plaintiff having no right of lateral support for her building, her sole right of action for the injury to the building is that of negligence in the manner of doing the work in the alley. Charless v. Rankin, 22 Mo. 566; Schultz v. Byers (53 N. J. L.), 13 L. R. A. 569; Obert v. Dunn, 140 Mo. 486. Indeed, when the soil of the adjoining lot has been dug away and the wall of a building placed there, the excavator is not bound to use such care as would have been necessary had the soil and not the wall been there. And where the excavation is deeper than the wall, and the earth underneath the wall gives way by reason of the weight of the wall, and not by reason of the excavation, the excavator is not liable though he took no precaution to protect the earth underneath the wall. Obert v. Dunn, 140 Mo. 486. (3) Notice is dispensed with when the one to be notified has knowledge. Larson v. Railroad, 110 Mo. 243; Charless v. Rankin, 22 Mo. 573. Care required of one excavating alongside of another's wall who has notice of the excavation, defined: Charless v. Rankin, 22 Mo. 574. And this is not opposed by the Larson case, 110 Mo. 234, for in that case there was an estoppel, and, besides, Judges Sherwood and Gantt specifically point out the Charless case as announcing the correct rule. (4) Knowledge, like actual notice, may be proved by direct evidence, or it may be inferred from other facts and circumstances. When it is inferred from facts and circumstances it is actual knowledge, the same as when proved by direct evidence. Rine v. Railroad, 100 Mo. 235; Speer v. Burlingame, 61 Mo.App. 86; Reilly v. Railroad, 94 Mo. 608. Knowledge is not confined to what one has personally observed. State v. Ransberger, 106 Mo. 140. Proof of notoriety of a fact is competent to show knowledge of it. Reilly v. Railroad, 94 Mo. 608; Crane v. Railroad, 87 Mo. 596. (5) (a) Plaintiff's instruction 2, as to the allowance of interest, was error. Plaintiff was not entitled to interest on the damages allowed for injury to her property. Kenneday v. Railroad, 63 Mo. 99; Allen v. Smith, 63 Mo. 103; Marshall v. Schricker, 63 Mo. 308; Atkinson v. Railroad, 63 Mo. 367; Meyer v. Railroad, 64 Mo. 542; DeSteiger v. Railroad, 73 Mo. 33; Chicago v. Allcock, 86 Ill. 384; Railroad v. Knapp-Stout, etc., Co., 160 Mo. 396. Even in cases of wrongful conversion of goods, when the statute authorizes the jury in its discretion to allow interest, it is error to instruct the jury to allow it. Carson v. Smith, 133 Mo. 615; Wheeler v. McDonald, 77 Mo.App. 213. (b) The giving of plaintiff's instruction allowing cost of repair and also damages for permanent injury was error, particularly as any permanent injury was due to the repairs done by plaintiff. The measure of damages for the injury to the property is the difference between its market value before and after the injury. Smith v. Kansas City, 128 Mo. 31; Williams v. Furnace Co., 13 Mo.App. 70; Bungenstock v. Drainage District, 163 Mo. 222; St. Louis Trust Co. v. Bambrick, 149 Mo. 560; Matthews v. Railroad, 142 Mo. 645. As to knowledge of character of premises: Carter v. Steyer, 93 Iowa 533. A general knowledge may be presumed from probabilities, such as the situation of the person and the character of the fact. Abbott's Trial Evidence, p. 608, n. 7, citing May on Insurance, 213, sec. 202.
Hickman P. Rodgers for appellant Heman Construction Company.
(1) A landowner has a right to a support from the adjoining soil only for his land in its natural state. Charless v. Rankin, 22 Mo. 566; Busby v. Holthaus, 46 Mo. 161. (2) The ordinances of the city of St. Louis are binding upon all persons within the corporate limits; and all persons interested are bound to take notice of them. Jackson v. Railroad, 157 Mo. 636; 1 Dillon on Mun. Corp. (4 Ed.), secs. 354-5-6. (3) If it is attempted to specify particularly the injuries resulting from the particular one, all that are designed to be proved should be stated. Pinney v. Berry, 61 Mo. 359. (4) (a) Damages affecting the desirability or salable value of property, as apart from the direct, material injury itself, are not such direct consequences as to form a proper element of damage, but are consequential and remote, and can not be recovered for. Robb v. Carnegie, 145 Pa. St. 324. (b) Neither is interest allowable in negligence cases where no pecuniary benefit is obtained by the one in fault. Marshall v. Schricker, 63 Mo. 308; DeSteiger v. Railroad, 73 Mo. 33; Gray's Harbor Com'l Co. v. Bank, 74 Mo.App. 633.
A. & J. F. Lee and George R. Lockwood for respondent.
(1) It is the duty of one who makes an excavation on his own land deeper than the foundations of a building upon an adjoining lot, and so near to such building as to endanger it, to notify the owner of such adjoining lot of the proposed excavation; and a failure to give such notice is the omission of ordinary care and diligence in connection with the making of such excavation, and the one making the excavation is liable for the injury to such building from such want of care and diligence. Jones on Easements (Ed. 1898), secs. 610 and 619; Obert v. Dunn, 140 Mo. 485; Larson v Railroad, 110 Mo. 242; Walters v. Hamilton, 75 Mo.App. 247; Eads v. Gains, 58 Mo.App. 592. (2) The fact that the sewer was being built by an independent contractor, and not by an agent of the city, did not relieve the latter from the duty of seeing that reasonable precautions were taken in the course of the work, to prevent injury to plaintiff's property; and the failure to give plaintiff notice of the proposed excavation adjoining her property was the omission of such reasonable precaution and negligence in the building of the sewer in question. Dillon v. Hunt, 105 Mo. 154; Haniford v. Kansas City, 103 Mo. 172; Fink v. St. Louis, 71 Mo. 57; Dillon on Mun. Corps. (4 Ed.), sec. 1027; Smith on Mun. Corps. (Ed. 1903), sec. 1527 and note; Jones on Neg. of Mun. Corps. (Ed. 1892), pp. 278-286; Jones on Easements (Ed. 1898), sec. 619; Welsh v. St. Louis, 73 Mo. 71; Blake v. St. Louis, 40 Mo. 569. (3) In actions for injuries to property by negligence, interest is recoverable on the damages assessed. 16 Am. and Eng. Ency. Law (2 Ed.), 1027, 1028 and 1098; Wilson v. Troy, 135 N.Y. 103; Railroad v. Joachimi, 58 Texas 456; Trans. Co. v. Steamboat Co., 51 N.Y. 369; Miller v. Railroad, 61 N.Y. 316; Lack v. Brecht, 166 Mo. 260. (4) Defendants were not entitled to have the damages, recoverable because of their negligence, mitigated by deducting from such damages such sum as plaintiff would have been compelled to expend to prevent injury to her house by reason of the building of the sewer alongside thereof. Dillon v. Hunt, 105 Mo. 163; 1 Sutherland on Damages (2 Ed.), sec. 149; Olds v. Mapes-Reeves Cons. Co., 177 Mass. 41; Lumber Co. v. Peter, 20 Ohio Cir. Ct. 73; Williams v. Hathaway, 45 A. 578; Matthews v. Railroad, 121 Mo. 337; Matthews v. Railroad, 142 Mo. 645; Weber v. Railroad, 36 N. J. L. 213; Coal Co. v. Coal Co., 48 P. 1045; Foley v. Land Co., 68 N.W. 994; Railroad v. Mustard, 34 Ind. 50; Gervish v. Mfg. Co., 30 N.H. 478. (5) And the court by instructing the jury to mitigate the damages by deducting therefrom said sum (which the evidence showed would have amounted to $ 398), more than compensated defendants for the interest which it instructed the jury to allow; and consequently the error, if error it was, of allowing interest on the damages recovered, was not error materially affecting the merits of the action, and therefore for such alleged error the judgment should not be reversed. R. S. 1899, sec. 865. (6) Publication of the ordinance establishing a sewer district, which included plaintiff's property, did not charge her with notice of the consequent damages to her property, and relieve defendants from the obligation of informing...
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