Grace v. Union Electric Co.

• Citation: 200 S.W.2d 364
• Decision Date: 01 February 1947
• Docket Number: No. 20739.,20739.
• Parties: G.D. GRACE, (PLAINTIFF), RESPONDENT, v. UNION ELECTRIC COMPANY, OF MISSOURI, A CORPORATION, (DEFENDANT), APPELLANT.
• Court: Court of Appeal of Missouri (US)

200 S.W.2d 364

G.D. GRACE, (PLAINTIFF), RESPONDENT, v. UNION ELECTRIC COMPANY, OF MISSOURI, A CORPORATION, (DEFENDANT), APPELLANT.

No. 20739.

Kansas City Court of Appeals, Missouri.

Opinion delivered February 1, 1947.

Appeal from Circuit Court of Pettis County. — Hon. Dimmitt Hoffman, Judge.

AFFIRMED.

Igoe, Carroll, Keefe & Coburn, Richmond C. Coburn, Thomas L. Croft, Kay & Starling, Harry R. Kay and Montgomery, Martin & Salveter for (defendant) appellant.

John A. Woodbridge of counsel.

(1) The conclusion testified to by Ferguson who was only a lay witness as to the question of proximate causation was one properly and solely for testimony by experts. Evans v. Massman Construction Co., 343 Mo. 632, 122 S.W. (2d) 924; Zeikle v. St. Paul & K.C.S. L.R. Co. (Mo. App.), 71 S.W. (2d) 154; Pedigo v. Roseberry, 340 Mo. 724, 102 S.W. (2d) 600; Texas & P. Ry. Co. v. Cochrane, 69 S.W. 984 (Civ. App. Tex.); Young v. Wheelock, 333 Mo. 992, 64 S.W. (2d) 950. (a) A non-expert witness may not testify in a flood damage case to a conclusion on the issue of proximate causation because that is an ultimate fact in issue and the conclusion invades the province of the jury. Cane Creek Coal Mining Co. v. Braden, 25 Ala. App. 256, 144 So. 143; St. Louis I.M. & S. Ry. Co. v. Yarborough, 56 Ark. 612, 20 S.W. 515; Northern California Power Co. v. Waller, 174 Cal. 377, 163 Pac. 214; Beery v. Driver, 167 Ind. 127, 76 N.E. 967; Louisville Hydro-Electric Co. v. Coburn, 270 Ky. 624, 110 S.W. (2d) 445; N.E. Coal Company v. Hayes, 244 Ky. 639, 51 S.W. (2d) 960; Midkiff v. Carter, 188 Ky. 339, 222 S.W. 92; 22 C.J., par. 613-623; 32 C.J.S., par. 461; Carter v. Griffith, 179 Ky. 164, 200 S.W. 369; Wilbaux Realty Co. v. Northern Pacific Ry. Co., 101 Mont. 126, 54 Pac. (2d) 1175; Kendrick v. Furman, 80 Neb. 797, 115 N.W. 541; McLeod v. Miller & Lux, 40 Nev. 447, 153 Pac. 566; Chan Sing v. City of Portland, 37 Ore. 68, 60 Pac. 718; Shaw v. Susquehanna Boom Co., 125 Pa. St. 324, 17 Atl. 426; Jones v. Seaboard Airline Ry. Co., 67 S.C. 181, 45 S.E. 188; DeKalb County v. Tennessee Electric & Power Co., 17 Tenn. App. 343, 67 S.W. (2d) 555. (b) The doctrine that a lay witness may not testify to a conclusion as to an ultimate fact in issue because this invades the province of the jury is uniformly applied in Missouri. Landau v. Travelers' Ins. Co., 315 Mo. 760, 287 S.W. 346; Hanke v. City of St. Louis (Mo.), 272 S.W. 933; Hughes v. Prudential Ins. Co. (Mo. App.), 179 S.W. (2d) 630; Schaeffer v. Northern Assurance Co., Ltd. (Mo. App.), 177 S.W. (2d) 688; Butner v. Union Pacific R. Co., 236 Mo. App. 1134, 163 S.W. (2d) 100; Martin v. Connor, 233 Mo. App. 1024, 128 S.W. (2d) 309. (c) The conclusion of the witness was not competent even if he had been an expert because he did not have sufficient knowledge of the pertinent physical facts upon which to base an opinion. Burge v. Wabash Railroad Co., 244 Mo. 76, 148 S.W. 925; Brands v. St. Louis Car Co., 213 Mo. 698, 112 S.W. 511; Farmers' Cooperative Ditch Co. v. Riverside Irrigation District, 16 Idaho 523, 102 Pac. 481. (2) The trial court's discretion as to the qualifications of an expert is subject to re-examination and where the witness has scant scientific knowledge as to the field in which he is testifying, particularly where he is not familiar with the facts upon which the particular case depends, the appellate court will review the trial court's action and reverse and remand the case because of the introduction of the witness's opinions. Ambruster v. Levitt Realty & Investment Co., 341 Mo. 364, 107 S.W. (2d) 74; Mo. R.S. 1939, secs. 10139.1-10139.28; Fuchs v. City of St. Louis, 167 Mo. 620, 67 S.W. 610; Graney v. St. Louis, I.M. & S. Ry. Co., 157 Mo. 666, 57 S.W. 276; Palmer v. St. L. & S.F.R. Co., 142 Mo. App. 440, 127 S.W. 96; Farris v. Interstate Circuit, Inc., 116 Fed. (2d) 409; Ensign-Bickford Co. v. Reeves, 95 Fed. (2d) 190; Capitol Motor Lines v. Gillette, 235 Ala. 157, 177 So. 881; Akin v. St. Croix Lumber Co., 88 Minn. 119, 92 N.W. 537. (3) The trial court committed reversible error in giving and reading to the jury at the request of plaintiff over the objections and exceptions of defendant, instruction No. A because there was no evidence to support the giving of the instruction. Evans v. Massman Construction Co., 343 Mo. 632, 122 S.W. (2d) 925; Hall v. Washington Power Company, 27 Idaho 437, 149 Pac. 507; Arnold v. C. Hoffman & Son Milling Co., 93 Kans. 54, 143 Pac. 413; McLeod v. Miller and Lux, 40 Nev. 447, 153 Pac. 566. (4) When evidence improperly received is stricken from the record and plaintiff fails to make a case for the jury, defendant's motion for a directed verdict should be sustained. Burge v. Wabash Railroad Co., 245 Mo. 76, 148 S.W. 925. (5) Even upon the theory that the dam indirectly influenced the overflow of plaintiff's land because it created silting above the dam which in turn caused water to back up on the plaintiff's land, plaintiff failed to make a case for the jury because its evidence on proximate cause was speculative and conjectural. Evans v. Massman Construction Co., 343 Mo. 632, 122 S.W. (2d) 924; Brown v. Chicago, Burlington & Quincy R.R. Co., 195 Fed. 1007; Morris v. Receivers of Richmond & D.R. Co., 65 Fed. 584; Treichel v. Great Northern Ry. Co., 80 Minn. 96, 82 N.W. 1110; 15 Am. jur., p. 408.

F.M. Brady and Lamm & Barnett for respondent.

(1) The general rule is that responsibility for damages to property caused by the maintenance of a dam is imposed on the owner and operator of the structure. 67 C.J., p. 724, par. 59 (5); 67 C.J., p. 722, par. 55. (a) This is the rule, and if the rule were otherwise, it would result in depriving property owners of their property and take it from them without compensation. McDaniels v. Greenville-Carolina Power Co. (S. Car.), 78 S.E. 980. (2) One whose property is injured by flooding is entitled to damages proportionate to the injury sustained and measured by the injury which plaintiff has suffered in consequence thereof. 67 C.J., p. 760, par. 104 (4). (a) And the correct measure of damages for destruction of a growing crop is the value of the crop standing in the field at the time it was destroyed. Jones v. Chicago, etc., R. Co. (Mo.), 125 S.W. (2d) 5; Hunt v. St. Louis, etc., R. Co., 126 Mo. App. 261, 103 S.W. 133; Instruction No. B, printed record 187. (3) A defendant who, by a dam (or otherwise), obstructs the flow of water causing it to overflow is liable for damages resulting, and this rule applies in cases where the dam causes silting and the silting causes the overflow or backwater which causes the damage. Strandley v. Railroad Co., 121 Mo. App. 537; Hand v. Catawba Power Co. (S. Car.), 73 S.E. 187; U.S. v. Chicago, B. and Q.R. Co., 90 F. (2d) 161; McDaniel v. Greenville-Carolina Power Co. (S. Car.), 78 S.E. 980; Doty v. Village of Johnson (Vt.), 77 Atl. 866. (4) While the general rule is that non-expert witnesses must state facts and not give their opinions, there are exceptions to this rule, and the limited opinion permitted from witness Ferguson, who had intimate, long time knowledge of the streams and conditions, comes within the exception and was not error. McPherson et al. v. St. Louis, etc., R. Co., 97 Mo. 253; Strandley v. A.T., etc., R. Co., 121 Mo. App. 537; Hand v. Catawba Power Co., 73 S.E. 187; Owen v. C., R.I., etc., R. Co., 109 Mo. App. 608; Galveston, etc., R. Co. v. Daniels, 9 Tex. Civ. App. 253, 28 S.W. 548; Gulf, etc., R. Co. v. Richards, 83 Tex. 203, 18 S.W. 611; Taylor v. San Antonio R. Co., 36 Tex. Civ. App. 658, 83 S.W. 738; S.W. Portland Cement Co. v. Kezer (Tex. Civ. App.), 174 S.W. 661; Hartford Co. Com'rs v. Wise, 71 Md. 43, 18 Atl. 31; Estes v. Chicago, etc., R. Co., 159 Ia. 666, 141 N.W. 49; Porter v. Pequonnoc Mfg. Co., 17 Conn. 249; Ry. Co. v. Haskell (Tex.), 23 S.W. 546; Etheridge v. Ry. Co. (Tex.), 39 S.W. 204; City of Austin v. Howard (Tex.), 158 S.W. (2d) 556; Ft. Worth, etc., R. Co. v. Kiel (Tex.), 185 S.W. (2d) 144; Noe v. C., B. and Q.R. Co. (Ia.), 41 N.W. 42; Madisonville, etc., R.R. Co. v. Renfro (Ky.), 127 S.W. 508; McLeod v. Lee, 28 Pac. 124; Ry. Co. v. Ditch Co. (Col.), 35 Pac. 910; Cleveland, etc., R. Co. v. True (Ind.), 100 N.E. 22; St. L., etc., R. Co. v. Bradley, 54 Fed. 630; Covert v. Ry. Co. (W. Va.), 100 S.E. 854. (a) The matter of determining whether or not such witnesses were qualified rested in the sound discretion of the trial court. St. L. and S.F. Ry. Co. v. Bradley, 54 Fed. 630; State ex rel. St. High. Com. v. Bailey, 115 S.W. (2d) 17; Boyce v. Gingrich, 154 Mo. App. 198; Lee v. Allen, 120 S.W. (2d) 172; Cities Serv. Gas. Co. v. Peak, 54 S.W. (2d) 482; Miller v. Gr. Am. Ins. Co., 61 S.W. (2d) 205.

CAVE, J.

This is an action for damages to plaintiff's crops and fences resulting from an overflow of his land alleged to have been caused by an obstruction of the Osage River by a dam owned and operated by the defendant. For clarity, we will refer to the parties as they were in the trial court, plaintiff and defendant.

The trial to a jury resulted in a verdict and judgment for plaintiff in the sum of $750, from which defendant perfected its appeal. In substance the petition alleges that defendant maintained and operated a dam across the Osage River near Bagnell, Missouri; that the maintaining and operation of said dam and obstruction in and across the Osage caused water to be impounded, held back and retarded in its natural flow down the Osage River and tributaries and caused the water to cover and flood land and premises adjacent to and in the vicinity of the Osage and its tributaries; that defendant so operated and maintained said dam and obstruction during May, 1943, at which time plaintiff lived upon and was engaged in farming 160 acres of land located in the vicinity of Whig Creek and the Pomme de Terre River, both tributaries of the Osage River; that during May, 1943, flood waters from the Osage River which had been impounded (commonly called Lake...