Givens v. Van Studdiford

• Decision Date: 30 April 1885
• Parties: GIVENS v. VAN STUDDIFORD, Appellant.
• Court: Missouri Supreme Court

86 Mo. 149

GIVENS

v.VAN STUDDIFORD, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from St. Louis Court of Appeals.

REVERSED.

James O. Broadhead, H. A. Haeussler and C. C. Simmons for appellant.

(1) The petition in this case does not set up or contain facts sufficient to constitute a cause of action. This is a private action for a public nuisance, and there is no allegation or averment that the plaintiff had ever sustained any injury therefrom that was not common to the public at large, or which was not participated in by the public as well as himself. It is an inflexible rule of law, that no single individual can maintain a suit, either in law or equity, to enjoin or abate a public and common nuisance, or to recover damages for himself occasioned thereby, unless he alleges and avers, and can prove that his injury is special and peculiar to himself, beyond, and of a different kind, and distinct from that which is sustained by the whole neighborhood or his fellow citizens generally. Such injury must be direct and positive as well as particular and not consequential, speculative or conjectural. Butler v. Kent, 19 Johns. 223; Venard v. Cross, 8 Kansas, 248; Lansing v. Smith, 8 Cowen, 146, 157; Dougherty v. Bunting, 1 Sanford, Sup. Ct. Rep. 1; Wetmore v. Story, 3 Abbott's Pr. Rep. 288, 289; Adams v. Popham, 76 N. Y. Appeal Rep. 410, 413; Baxter v. Winsoski Turnpike Co., 22 Vt. 114: Hamilton v. Whiteridge et al., 11 Md. 128; City of Baltimore v. Marriott, 9 Md. 160; 19 Pick. 149; Manhattan Gas Light Co. v. Barker, 36 Howard Pr. Rep. 233; Wood on Nuisances, sec. 829, p. 878. (2) The effect of the provision in section 1, article 3, of the amended charter of the city of St. Louis, approved March 4, 1870 (Sess. Laws, 1870, 463-4), authorizing the city to suppress and regulate bawdy houses, was to repeal and entirely eliminate from the criminal code all the statutory and common law provisions in force, previous to that time, imposing penalties for keeping such houses, or renting them for such purposes, and so the Supreme Court expressly declared in the cases of The State v. Kate Clark, 54 Mo. 17, 23, 30; and State v. Vic. De Bar, 58 Mo. 395. English Draft Code, 1879, sec. 10; 2 Wharton's Criminal Law, sec. 1410 (8 Ed.); Wood on Nuisances, p. 2, note; Ib. p. 787, sec. 750; 17 N. J. Eq. Rep. 75; 32 Michigan 419-420; Leigh v. Westerfelt, 2 Duer, N. Y. Sup. Ct. Rep. 618; Williams v. Railroad, 18 Barb. 247; Gibbons on Nuisances, 396; Phœnix, etc., v. Com. of Em., 12 Howard Pr. Rep. 1-14; Harris v. Thompson, 9 Barb. 350; Knox v. Mayor of N. Y. City, 55 Barb. 404; Wood on Nuisances, sec. 757, p. 798; Randle v. Pacific Railroad Co., 65 Mo. 325; Transportation Co. v. Chicago, 9 Otto, 635, 640; The People v. Law, 34 Barb. 514. (3) A landlord is not liable for a nuisance if at the time of the letting there is no actual nuisance on the premises. Gibbon on Nuisances, 407; Owings v. Jones, 9 Md. 108; Wood on Nuisances 116. (4) Where the defendant is not the original creator of the nuisance, he must have notice of it and a request must be made to remove it before an action can be brought. Grigsby v. Clear Water Lake Co., 40 Cal. 396; Pierson v. Glenn, 2 N. J. Rep. (Green) 36; Johnston v. Lewis, 13 Conn. 303; Noyes v. Stillman, 24 Conn. 15; Pillsbury v. Moore, 44 Maine, 154, 156; Carlton v. Reddington, 21 N. J. 291; 1 Chitty on Pl. 94, note m. (5) The court erred in admitting the plaintiff's testimony to show that he might possibly have rented his premises had it not been for the improper conduct of the occupants of the defendant's house. The evidence was merely speculative and conjectural. The testimony of the other witnesses as to the general character and reputation of the house and its inmates was also objectionable. If the house was a nuisance per se, there is nothing to show that plaintiff suffered differently from others. If the house was a legalized nuisance, as we contend, then its reputation and that of its inmates in these respects, was only the natural and necessary consequence of the peculiar business, which, at the time, the law tolerated. (6) The court erred in excluding the testimony offered by the defendant as follows: The ordinance of the city of St. Louis, number 7330, entitled “An Ordinance to regulate Houses of Ill Fame,” approved July 9, 1870. In the cases of the State against Kate Clark and Vic De Bar, above cited, the Supreme Court held that this ordinance was a valid one, and that a permit or license under it exempted the party holding it from any prosecution by the state for keeping such a house as is here complained of. Special matter as a license need not be pleaded specially. Wood on Nuisances, sec. 839; 1 Chitty Pl. 491; Bird v. Randall, 3 Burr. 1353.

Thoroughman, Christian & Priest for respondent.

(1) This court has no jurisdiction and cannot consider the appellant's appeal, as the same was not taken in the time required by law. The motion for new trial was filed November 28, 1881, but was not passed upon until the first day of May, 1882. As this court will take judicial notice of the time for holding the courts, it is clear that the bill of exceptions was not filed during the term at which the judgment was rendered; nor does the record show any agreement by the attorneys that they might be filed out of time. Ellis v. Anderson. 25 Mo. 327; West v. Fowler, 55 Mo. 300; s. c., 59 Mo. 40; State v. Ducknott, 68 Mo. 156; Riddlesbarger v. McDaniel,38 Mo. 139. (2) The petition sufficiently states a cause of action. Marrott v. Baltimore, 9 Md. 160; Smith v. Boston, 7 Cush. 254. (3) The evidence that the keeper of the bawdy house was licensed as such by an ordinance of the city was properly excluded. This evidence could not have been admitted, even if defendant had pleaded it as a special defence, and surely it was not admissible when it was not pleaded. Nelson v. Brodhack, 44 Mo. 596; Smith v. Calligan, 71 Mo. 387; Atterberry v. Powell, 29 Mo. 429; Adams v. Trigg, 37 Mo. 141; Pomeroy on Remedies, sec. 673. (4) Judicial notice will not be taken of a municipal ordinance. Cox v. St. Louis City, 11 Mo. 431; Mooney v. Kennett, 19 Mo. 210; State ex rel. v. Oddle, 42 Mo. 210. (5) The manner in which the business of the house was conducted rendered it a common nuisance, irrespective of the question as to the right of the keeper of the house to keep it as a bawdy one. Cleveland v. Citizens Gas Light Co., 20 N. J. Eq. 201; Wharton's C. L., sec. 1424. (6) Where a landlord lets a house knowing that it will be used for the purposes of prostitution, he will be liable to those suffering injury from the nuisance. Wood on Nuisances, p. 36, sec. 30.

BLACK, J.

Some of the questions presented by this record were considered by the court of appeals on the first appeal. 4 Mo. App. 498. The opinion then filed was approved by this court. 72 Mo. 129. Questions not then considered are also now presented in argument and in elaborate briefs.

1. It is first insisted that there is no bill of exceptions of which the court can take notice for the purpose of disposing of the case on its merits. The cause was tried at one term of the circuit court, when a motion for a new trial was filed in due time. The motion stood over for two terms, was called up and overruled at the third term after it was filed, and the bill of exceptions was then allowed in which the exceptions taken on the trial were for the first time saved. The motion does not appear to have been continued from term to term, or from any of these terms to the next, by any general or special order. In Riddlesburger v. McDaniel, 38 Mo. 138, it was said by Wagner, J.: “And until a final hearing and disposition of the motion (for new trial) the whole matter would unquestionably rest in the breast of the court, and it would be competent for it, in its discretion, for good cause, to sustain the motion and award a new trial. Until this result is reached, it cannot be said that the cause is finally determined. And as the statute requires all exceptions to be embraced in the same bill it would be correct if filed at the term when the matter is disposed of.”

The statute to which reference was there made is the same as section 3636, Revised Statutes, 1879. It is argued that this section of the practice act was only designed to avoid filing so many bills during the progress of the same trial, and was not intended to carry the exceptions over until the motion for new trial was acted upon. The Riddlesbarger case asserted the doctrine that the exceptions taken on the trial of a cause might be preserved in the bill filed when the motion for new trial was overruled, though at a subsequent term of the court. That ruling was followed in Gray v. Parker, 38 Mo. 160, and recently in Henze v. Ry. Co., 71 Mo. 644, and must now be regarded as the settled practice in this state. The ground upon which the rule must stand is that these matters of exception taken on the trial are in the breast of the court until the motion for new trial is determined. Either party had the right to and could have called up the motion at the term at which it was filed, or at any subsequent term, if he desired determination of the same. The bill of exceptions must, therefore, be considered as a part of the record.

2. The facts pleaded and undisputed are that plaintiff owned a lot in St. Louis upon which there was and is a valuable building. He incumbered the property by a deed of trust for $20,000 in 1873 and the property was sold under this deed of trust in December, 1875. Defendant owned an adjoining lot upon which there was also a house. Plaintiff, in his amended petition, alleged that defendant leased his property to tenants for a house of prostitution and that it was so used with the knowledge of defendant; that the inmates indecently exposed themselves at the windows next to plaintiff's property, by reason of which plaintiff's property became undesirable and depreciated in value, so that he thereby lost rents,...