Hewitt v. Chicago, B. & Q. R. Co., 52511

• Decision Date: 11 March 1968
• Docket Number: No. 52511,No. 2,52511,2
• Citation: 426 S.W.2d 27
• Parties: Ivan HEWITT et al., Plaintiffs-Appellants, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, a Corporation, Defendant-Appellant
• Court: Missouri Supreme Court

Page 27

426 S.W.2d 27

Ivan HEWITT et al., Plaintiffs-Appellants, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, a Corporation, Defendant-Appellant.

No. 52511.

Supreme Court of Missouri, Division No. 2.

March 11, 1968.

Rehearing Denied April 8, 1968.

Harold Miller, Maysville, Beavers, Thomson & Beavers, Maryville, for appellants (plaintiffs).

Robert L. Ross, Albany, Clyde J. Linde, Charles White Hess, of Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, for appellant (defendant).

LAURANCE M. HYDE, Special Commissioner.

Action by landowners for damages from flooding, totaling $50,639.90, claimed to have been caused by defendant's railroad bridge, alleged to have been constructed without suitable openings in violation of Sec. 389.660, RSMo, V.A.M.S. Plaintiff had verdict and judgment for amounts totaling $8,965.00. The court sustained motions for new trial of all parties so jurisdiction of appeals from these orders is in this court because the amount involved is the amount originally sought by plaintiffs.

Plaintiffs' motion was for a new trial on the issue of damages only, claiming the damages awarded were grossly inadequate and against the weight of the evidence. Defendant's motion was for judgment in accordance with its motion for directed verdict or in the alternative for a new trial, alleging among other errors what it calls four major errors, namely: instructions permitting lump sum verdicts for five years ' flooding (1960--1964), permitting expert opinions not based on facts, failure to rule that defendant's bridge was not the proximate cause of plaintiffs' damage, and failure to instruct that defendant was under no duty to anticipate in 1964 a flood of such magnitude.

The court on September 20, 1966, made the following order: 'Arguments heard on motion for new trial by plaintiffs and defendant; same are considered; plaintiffs' Motion for New Trial sustained; defendant's motion for New Trial sustained.' On September 23, 1966, defendant filed notice of appeal from this order and plaintiffs filed a notice of appeal on September 26, 1966.

Thereafter, on September 28, the court entered a new order as follows: 'Now on this date the Court on its own motion sets aside the order heretofore entered on September 20, 1966, and in lieu of finds Defendant's for new trial sustained because of error in giving instructions No. 3 and 12 inclusive and because the verdict is against the weight of the evidence; plaintiffs' motion for new trial on issue of damages only overruled; all parties notified.' Plaintiffs filed a notice of appeal from this order on November 17, 1966, as authorized by a special order for appeal made by this court.

There is nothing in the record to show any notice was given to plaintiffs before the order of September 28th was made and plaintiffs claim none was given. We can only construe the reference to notification in this order as meaning the parties were notified it had been made. Therefore, on authority of Albert J. Hoppe, Inc. v. St. Louis Public Service Co., 361 Mo. 402, 235 S.W.2d 347, 23 A.L.R.2d 846, we must hold this order invalid and determine the meaning and effect of the order of September 20, 1966. See also Quinn v. St. Louis Public Service Co., Mo.Sup., 318 S.W.2d 316. Because the order of September 28th is invalid it is not necessary to decide whether the court could have had authority to enter it after notices of appeal were filed.

Certainly the order of September 20th is an inconsistent order, granting defendant a general new trial which is what its motion sought and granting plaintiffs a new trial on the issue of damages only which was the sole ground raised and relief sought by plaintiffs. Thus in the relief granted the parties there was a direct conflict. Our view is that the broader general relief granted must prevail over the limited, if we find merit in any of defendant's claims of error. We will therefore consider first the above four alleged major errors briefed by defendant.

Defendant's first contention is the lump sum verdict including damages for several years of flooding, as authorized by the instructions, was prejudicial error. Defendant cites Cottier v. Chicago, B. & Q.R. Co., Mo.App., 33 S.W.2d 173; Jones v. Chicago, B. & Q.R. Co., 343 Mo. 1104, 125 S.W.2d 5; Brown v. Quincy, O. & K.C.R. Co., 198 Mo.App. 71, 199 S.W. 707, in which damages for each of several years of flooding were required to be separately determined. Defendant also cites Flowers v. Smith, 214 Mo. 98, 112 S.W. 499 (separate libels); Conran v. Fenn, 159 Mo.App. 664, 140 S.W. 82 (separate slanders) and Smith v. Chicago, R.I. & P. Ry. Co., 183 Mo.App. 180, 170 S.W. 324 (damages on separate causes of action) which were reversed because lump sum verdicts were authorized. In the Flowers case a motion to elect was overruled; in the Conran case there were other grounds for reversal and this was also true in the Smith case. The trouble with defendant's contention here is that it made no motion to require the separate claims of plaintiffs to be stated in separate counts in the petition, with separate counts for each year in which damages were claimed by each; nor did defendant make any objection to evidence being received for each of the separate years claimed from each plaintiff under the general petition of all of them; nor did defendant make any request for separate submission of damages of any of the plaintiffs for each flood involved or made any objection to the way these were being submitted. Moreover, the record does not show that defendant made any request for instructions.

It is true that, where an obstruction of a watercourse causes annual or occasional flooding of lands, each repetition of overflow gives rise to a new cause of action, 56 Am.Jur. 859, Waters, Sec. 443; 93 C.J.S. Waters § 36(1) b, p. 656; Annotation 5 A.L.R.2d 320, 323; 2 Farnham on Waters 1847, Sec. 581. (We note from the record in our files in Smithpeter v. Wabash Ry. Co., 360 Mo. 835, 231 S.W.2d 135, 199 A.L.R.2d 950, cited by both parties, the petition was in separate counts for each landowner plaintiff for each year's flood damage and was submitted to require separate verdicts on each.) '(W)here there are several issues in the case, in the absence of an objection that the verdict has not passed on the issues separately a general verdict * * * in no event is open to question when objection is not taken at the proper stage of the proceedings.' 53 Am.Jur. 722, Trial, Sec. 1043; see also 89 C.J.S. Trial § 502, p. 172. Furthermore, Rule 55.37, V.A.M.R. provides: 'A party waives all objections and all other matters then available to him by motion by failure to assert the same by motion within the time limited by Rule 55.36 except (1) Failure to state a claim upon which relief may be granted, (2) Failure to state a legal defense to a claim, and (3) lack of jurisdiction over the subject matter.' Rule 55.31 specifically includes in objections to be raised by motion 'whether or not the same may appear from the pleadings and other papers filed in the case. * * * (9) That several claims have been improperly united.' In Helm v. Riss & Co., Inc., Mo.App., 194 S.W.2d 713, 714, it was ruled (applying what is now Rule 55.36, then Sec. 66, Laws 1943) 'The effect of this assignment is that there were two incompatible causes of action joined in one count. * * * There was no attack made on the petition by demurrer, motion or answer, and if there is a misjoinder of causes in one count, it is waived.' See also many cases under Sec. 406(8), Pleading, West's Missouri Digest. Therefore, we hold defendant's failure to make objection by appropriate motion to pleading and submitting damages of some plaintiffs (four plaintiffs claimed damages only for the 1964 flood) for several years of flooding in single counts and instructions were waived by defendant. The claim of defendant that as to the floods of 1960--1963 there was no evidence to establish defendant's liability will be considered with its assignment that plaintiffs' evidence was not sufficient to show defendant's bridge was the proximate cause of their damage.

The 102 River, having its source in Iowa, runs to the south through Nodaway County and into Andrew County. After the river enters Andrew County it runs in a southerly direction along the west side of the town of Rosendale, then bends to the east and runs south of the town where it is crossed by the defendant railroad. Defendant's bridge is about a half mile south of the center of the town but it is ninetenths of a mile, along the channel of the stream, from the bridge on State Highway 48 west of the town to defendant's bridge. Plaintiffs are landowners, some owning town property but most with farm land north of defendant's bridge, much of it between defendant's bridge and Highway 48 east of the town but some north of the Highway. The U.S. Geological survey map and other maps in evidence show very little difference in elevation of the land between defendant's bridge and Highway 48 and for some distance north of the Highway. There was a drop of two feet between the two bridges. Much of plaintiffs' land was leveed and overflowed when the levees were breeched by the flood waters. Defendant's bridge had solid steel girders ten feet high, with its track at their upper level. The water was five and one-half feet up on this girder on June 21, 1964. There was also testimony that in 1964 there was a great amount of logs and other debris up against defendant's bridge...