Jaycox v. E.M. Harris Bldg. Co.

• Decision Date: 09 August 1988
• Docket Number: No. 53711,53711
• Citation: 754 S.W.2d 931
• Parties: Donald JAYCOX, Plaintiff-Respondent, v. E.M. HARRIS BUILDING COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 931

754 S.W.2d 931

Donald JAYCOX, Plaintiff-Respondent, v. E.M. HARRIS BUILDING COMPANY, Defendant-Appellant.

No. 53711.

Missouri Court of Appeals,

Eastern District,

Division Three.

Aug. 9, 1988.

Francis J. Vatterott, St. Ann, for defendant-appellant.

Thomas A. Spoon, St. Louis, for plaintiff-respondent.

KELLY, Judge.

E.M. Harris Building Company ("builder") appeals the judgment entered after a bench trial where the court found in favor of respondent Donald Jaycox ("Jaycox") in a trial de novo on an action originally filed in small claims court by Jaycox against builder. The trial court awarded Jaycox damages totalling $1,000.00. We reverse.

In March 1985 Jaycox entered into a contract with builder to buy a new home to be constructed by builder in St. Louis County. The purchase price for the home and lot was $116,705.00. At the time of the execution of the contract, Jaycox paid $1,000.00 earnest money deposit. Sometime during the construction of the home, Jaycox was given a master key to the property by builder's salesman. Jaycox did not live in the premises under construction nor did the contract provide for his right to possession of the residence prior to closing. On or about September 28, 1985, approximately two weeks before the scheduled closing, builder's employee bulldozed a path through the wooded section in the rear of the lot, knocking down several trees. Builder refused Jaycox's request to replace the destroyed trees. After the parties closed on the property around the middle of October, Jaycox filed his action against builder for damages to the property and trees. The parties on appeal, as well as in small claims and at the trial de novo, have treated the action as one sounding in trespass.

In ruling in favor of Jaycox, the trial court candidly admitted difficulty with the issue of possession. It acknowledged Jaycox's position that he had "an equitable interest in this property and the Defendant is merely holding the completed title as trustee for him." The court specifically stated that "there was a waiver by Defendant in giving to him, at least an ostensible indicia of possession, keys to the building, keys to the house, whether it was to hang drapes, et cetera; ... but I feel that the weight of the factual evidence supports an acquiescence or waiver as to possession." The court further expressed consternation in denying Jaycox recovery for trees knocked down by the builder when Jaycox had paid a premium of $500.00 for a lot with trees. The trial court concluded by awarding Jaycox $500.00 actual damages and $500.00 for damages to the aesthetic view of the property.

The standard of review in a court-tried case is that the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law or erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Nixon v. Williamson, 741 S.W.2d 745, 746 (Mo.App.1987).

Builder raises two points on appeal challenging submissibility and damages. The issue dispositive of this appeal is builder's contention that Jaycox failed to establish he had possession of the premises when the alleged trespass occurred.

The gist of an action for trespass is violation of possession, not challenge to title. Nixon, 741 S.W.2d at 746. Jaycox had the burden of proving that he was rightfully in possession as against builder at the time of the trespass. Hoelmer v. Heiskell, 359 Mo. 236, 221 S.W.2d 142, 144 (1949); Poole v. Roloff, 361 S.W.2d 340, 345 (Mo.App.1962). While we have observed that the rule in England has always been that actual possession is necessary, we have further stated that "[t]he possession required to maintain an action in trespass does not mean occupancy of the property in question and constructive possession is sufficient to meet the requirement." Prater v. Stubblefield, 483 S.W.2d 669, 672 (Mo.App.1972) ( quoting Allen v. Wehrman, 204 S.W.2d 464, 467 (Mo.App.1947)). A defendant in such an action may dispute a plaintiff's possessory right by showing title and the possessory right in himself. Hoelmer, 221 S.W.2d at 144; Poole, 361 S.W.2d at 345.

Jaycox did not physically occupy the property at the time builder destroyed some of the trees on the lot. Having conceded he did not have actual possession, he argues that he had constructive possession because he had a master key given to him by builder's salesman to permit him to inspect the house. He argues that builder's actions in giving him the master key was an "indicia of possession" so that he had constructive possession.

We disagree.

The parties do not dispute that builder held the record title of the property at the time of the...