Greenwell v. A. V. Wills & Sons
| Decision Date | 11 March 1922 |
| Citation | 239 S.W. 578,210 Mo.App. 651 |
| Parties | T. J. GREENWELL et al., Respondents, v. A. V. WILLS & SONS, and DRAINAGE DISTRICT NO. 6, Appellants |
| Court | Missouri Court of Appeals |
Appeal from the Pemiscot County Circuit Court.--Hon. Sterling H McCarty, Judge.
REVERSED.
Judgment reversed.
Ward & Reeves and C. E. Bragg for appellants.
(1) "Where specific acts of negligence are pleaded it devolves upon plaintiff to prove the acts of negligence pleaded; and if plaintiffs recover at all, it must be upon the specific acts of negligence pleaded, and not otherwise." Orcutt v. Century Bldg., 201 Mo 443; Price v. Railway Co., 72 Mo. 414; Bunyon v Railway Co., 177 Mo. 19; Hamilton v. Railway Co., 114 Mo.App. 508; McGrath v. Railway Co., 197 Mo. 105; West v. Holliday, 195 S.W. (Mo. App.) 403; Winkleblack v. Mfg. Co., 187 S.W. (Mo. App.) 95; Reid v. Schaff, 210 S.W. (Mo. App.) 85; Zasemowich v. Mfg. Co., 213 S.W. 799. (2) Plaintiff was permitted to tell what some fellow, being one of the men operating the boat, said to him as to how come the boat to sink. It was not shown who this man was, what capacity he represented these copartners in, nor that it was a part of the res gestae, nor whether the fellow was on the boat at the time or not, when he made the statement, and his testimony was therefore hearsay and incompetent. Rooker v. Railway Co., 226 S.W. (Mo. App.) 69; Robinson v. Busch, 199 Mo.App. 184; Yarbro v. Wis. Lbr. Co., 211 S.W. (Mo. App. 713; Redden v. Railway Co., 185 Mo. 11; Cross v. Coal Co., 186 S.W. (Mo. App.) 529; State ex rel v. Reynolds, 208 S.W. (Mo. App.) 620. (3) It submits the dredge boat sinking because of negligence, when there is no proof at all of any negligence on that behalf. "And then placed two solid dirt embankments across said ditch, thereby completely stopping the flow of water through said ditch, until the lands cultivated by plaintiffs in corn were again completely submerged." "Thereby completely stopping the flow of water," and "that the corn was again completely submerged" are facts assumed as true, and makes the instruction erroneous in that behalf. Henson v. City, 210 S.W. 13; Hunt v. City, 211 S.W. 673; Dunn v. Railway Co., 199 Mo.App. 621; Oliver v. Railway Co., 211 S.W. 619; Kepley v. Realty Co., ___ Mo. App., ___ 200 S.W. 750; Rappaport v. Roberts, ___ Mo. App., ___ 203 S.W. 676; Muller v. Marvey, 199 Mo.App. 627. (4) Said instruction is wholly erroneous in not submitting to the jury the hypothesis of negligence embraced in the petition and the evidence. Boles v. Dunham, ___ Mo.App. , ___ 208 S.W. 480; Simms v. Dunham, 203 S.W. 652; Hays v. Railway Co., 211 S.W. 561; Davis v. Railway Co., 199 Mo.App. 621; Kern v. Harvey, 200 Mo.App. 433; State ex rel. v. Ellison, 270 Mo. 645, 653; McGinnis v. Railway Co., 195 Mo.App. 390.
Sheppard & Oliver for respondents.
(1) The facts constituting the negligence must be left to the jury, and if the facts which the law pronounces as negligence are found in favor of the plaintiff that is sufficient. And that seems to be the holdings of the Missouri authorities along this line. Brash v. City of St. Louis, 161 Mo. 433; Springfield Crystalized Egg Co. v. Springfield I. & R. Co., 259 Mo. 664; H. A. Johnson & Co. v. Springfield I. & R. Co., 127 S.W. 692; Franberger v. Chicago and A. R. Co., 250 Mo. 46; Thacle v. Marion Planing Mill Co., 165 Mo.App. 707.
--T. J. and Chas. A. Greenwell sued to recover damages to their crops alleged to have been caused by water negligently held on their lands. The cause was tried to a jury and resulted in a judgment for plaintiffs in the sum of $ 710, from which judgment defendants appealed.
Plaintiffs allege two grounds of negligence: (1) Negligence in and about constructing a dam across the ditch; and (2) in so negligently operating the boat that it sank, and the dams necessary to raise it caused or contributed to the damage. Plaintiffs state these grounds in their petition substantially as follows: (1) That during the times mentioned defendant drainage district was enlarging drainage ditch No. 6 and defendants A. V. Wills & Sons were drainage contractors and as such contractors entered into a contract for enlarging said drainage ditch No. 6; that said drainage ditch No. 6 had theretofore been constructed, and lateral ditches leading from the land adjacent thereto had been constructed so as to drain the water from the adjacent land into said drainage ditch No. 6; that the lands mentioned were drained prior to the time complained of; that defendants in doing the work of enlarging said drainage ditch No. 6 placed a dam across said ditch so as to completely prevent the water from flowing down said ditch as it had previously done without leaving any outlet for the water which had previously flowed down said ditch, and negligently and carelessly kept said dam in said ditch for a great period of time until the land cultivated by plaintiffs for the season of 1919 was completely flooded; that after the lands were flooded defendants cut a passageway around the dam so as to let part of the water that continued to accumulate in said ditch pass around said dam, but there was not sufficient passageway to lower and take the water off the land.
(2) That it was the duty of defendants in enlarging said drainage ditch to do the work in a reasonably expeditions manner, and at all times leave sufficient passageway for the water so as to prevent the water from flowing out of the laterals and overflow the land cultivated by plaintiffs and others; that defendant while doing the work of enlarging said ditch so negligently and carelessly conducted the management of the dredge boat with which said drainage ditch was being dug as to let said dredge boat sink, and in order to raise and repair said dredge boat defendants constructed two more dams across said drainage ditch, one just behind the dredge boat that was sunk, and one just in front, and used a large pump for the purpose of pumping out the water between the two dams so that they could get to the sunken boat and repair it; that the last two dams completely cut off all flow of water down said drainage ditch, and caused the water that would otherwise have flowed around the first dam from flowing down said ditch, and caused all of the water thus accumulated to spread out over the land cultivated by plaintiffs; that defendants through the negligent manner in which they conducted the enlarging of said drainage ditch and repair of said dredge boat permitted the last two mentioned dams to remain across said ditch for near two months, so that all drainage was closed for about that period of time; that the passageway left for the water around the original dam being small, when the last two dams were opened the water that had accumulated on the land cultivated by plaintiffs could not run through said opening sufficiently fast to lower the water and take it off of said land until plaintiffs' corn had been damaged.
Wills & Sons answered by general denial. The district answered by a general denial, and a defense that Wills & Sons were independent contractors, and that in no event was it liable. No reply seems to have been filed to the new matter in the district's answer, but no point is made in that respect.
Defendants brief their case separately, and make separate assignments, but in the main to the same effect. These assignments may be stated thus: (1) That the court erred in failing to direct a verdict for defendants; (2) that the court erred in admitting evidence; (3) that the court erred in giving and refusing certain instructions. The defendants are interested in common for the most part. Their interest do not run counter except on the issue of an independent contractor, but the view we take of this cause makes it unnecessary to consider any except the first assignment.
Should the court have directed a verdict for both defendants? The ditch in the drainage district was being enlarged, cleaned, etc., under sections 4531 et seq., Revised Statutes 1919. Wills & Sons were awarded the contract for a portion of this work. The district was several miles in length, and the original ditch had been dug for several years. The old ditch was twenty feet wide with a ten or twelve foot bottom, and the new ditch was forty feet wide with a twenty foot bottom.
The clauses and provisions of the contract under which Wills & Sons were working which we think are pertinent here are as follows: "The ditches herein provided for shall be constructed with machinery suitable for the work, dug to the depth and bottom width as directed by the engineer, and have side slopes as near as may be of one horizontal to one vertical. The excavated material shall be deposited about equally on each side of the ditches, in even uniform spoilbanks, leaving berms of such width between the outer slopes of the ditches and the spoil-banks as shown on the plans; provided, that unequal distribution of spoil-banks may be made by the contractor upon the written consent of the engineer. In the reconstruction or deepening of ditches all excavated material shall be deposited so that none of the material shall fall or flow upon the berm space as required by the plans and specifications.
The contractor will be permitted to hold water in the ditches for the purpose of floating dredeges at such elevations as the engineer from time to time may direct.
Where ditches pass through caving ground the contractor will be required to continue work with the equipment in use thereon until such time as the engineer shall conclude and advise the contractor that it is not practical to complete the work, as per plans, after which time the contractor may be relieved of further responsibility...
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