Kelly v. Kansas City Bldg. & Loan Ass'n

• Decision Date: 18 February 1935
• Citation: 81 S.W.2d 440,229 Mo.App. 686
• Parties: JOHN F. KELLEY ET AL., RESPONDENTS, v. KANSAS CITY BUILDING & LOAN ASSOCIATION, APPELLANT
• Court: Kansas Court of Appeals

81 S.W.2d 440

229 Mo.App. 686

JOHN F. KELLEY ET AL., RESPONDENTS, v. KANSAS CITY BUILDING & LOAN ASSOCIATION, APPELLANT

Court of Appeals of Missouri, Kansas City

February 18, 1935

Appeal from Circuit Court of Jackson County.--Hon. Darius A. Brown Judge.

AFFIRMED.

Judgment affirmed.

Benj. W. Grover and Grover & Browne for respondent.

Reinhardt & Schibsby for appellant.

REYNOLDS C. Campbell, C., concurs.

OPINION

REYNOLDS, C.

This cause originated on January 6, 1933, with the filing of the petition herein by the plaintiffs. The plaintiffs are husband and wife; and, by the amended petition upon which the cause was tried, they seek the recovery of damages for the loss of the services, aid, and companionship of their two minor children, John F., Jr., and Dorothy Lee, by reason of injuries to said children through certain alleged negligent acts of the defendant, set forth in the amended petition, in installing a septic tank upon premises at 5610 East Twenty-ninth Street, Kansas City, Missouri, owned by it and adjoining the premises owned by plaintiffs at 5612 East Twenty-ninth Street, Kansas City, Missouri, upon which plaintiffs resided with said children as members of their household, and in maintaining and operating said tank so that foul and filthy matter gathered therein and was negligently allowed to escape therefrom and drain over and stand upon plaintiffs' property in large quantities, from and since January 1, 1930, emitting foul and noxious fumes, gases, and odors which permeated plaintiffs' property and the air in and about plaintiffs' premises and entered the dwelling thereon in which they lived, by reason of which the said children became poisoned, were rendered anaemic, and were otherwise injuriously affected in a permanent manner.

Plaintiffs further sought recovery for damages for the rental and usable value of their said property and likewise for the market value thereof, all of which they alleged in the amended petition had become injuriously affected and diminished by reason of the said negligence of defendant as aforesaid in the installation and maintenance of said septic tank in a manner to create a nuisance upon plaintiffs' premises from the overflow thereon from said tank, as set out therein.

The answer was a general denial.

The damages for which recovery was sought were not separately set out but were alleged to amount in the aggregate to the sum of $ 7500. Upon trial before the court and a jury, a lump verdict for $ 900 was returned, upon which judgment in such sum was by the court rendered for plaintiffs against the defendant. From such adverse judgment, after unsuccessful motions for a new trial and in arrest of judgment, the defendant appeals.

The petition, after alleging the creation and maintenance of the condition resulting from the building and maintenance of the septic tank by defendant and the overflow therefrom, charged that such condition was a nuisance and that defendant knew, or should have known by the exercise of due care, of such condition in time, prior to March 5, 1930, to have remedied such condition or to have removed said septic tank and thereby avoided the injury and damage to plaintiffs but that defendant negligently failed so to do.

It further alleged the negligence of defendant in the construction of the septic tank complained of in violation of an ordinance of Kansas City, Missouri, in failing to secure a permit for its construction. It further alleged that the condition upon plaintiffs' property created by the septic tank was a nuisance and that it was maintained in violation of a city ordinance of Kansas City, duly set out in said petition.

There is evidence in the record tending to show that plaintiffs had continuously lived upon the property owned and occupied by them since the year 1924, together with their two children, John F., Jr., and Dorothy Lee; that the ages of such children at the time of the trial were respectively twelve and ten years; that, in the fall of 1929, the defendant, being the owner of the adjoining premises upon the west, erected a septic tank thereon; that plaintiffs' lot was lower than defendant's, the grade of the surface upon and from defendant's lot sloping to the east and across plaintiffs'. Both properties front on Twenty-ninth Street, Kansas City, Missouri. There does not appear to be any public sewer at or convenient to the point where said properties are located on Twenty-ninth Street, the nearest one thereto being upon Twenty-ninth Street and Oakley. There appears to have been about sixteen dwelling houses in the same block with said properties facing north and south on Twenty-eighth Street Terrace and on Twenty-ninth Street, which block appears to be about 220 feet square. These sixteen dwellings appear to have had for use sixteen privies situated upon the lots upon which said dwellings stand. It appears that, at the time the septic tank was constructed by defendant, the plaintiffs' children were healthy, robust, and strong and had never been troubled with sickness or other disorders and that they were fond of play and liked school. In January, 1930, the contents of the tank began to drain over on plaintiffs' property. The tank was constructed from two large, round Dickey pipes or tiles, each of 200 gallon capacity, set one upon the other in a hole dug in the ground several feet deep, with laterals leading out therefrom. The tank was covered and was about one foot beneath the surface. One lateral ran in an easterly direction toward plaintiffs' property line, and one directly northeast toward plaintiffs' house; one of the same ran to within four or five feet of plaintiffs' property, and the other within three feet of the west line of plaintiffs' lot. The laterals were intended to drain the contents of the tank and distribute it in the ground, under the surface thereof, but proved inadequate therefor. The overflow from said tank, draining over on plaintiffs' lot in January, 1930, came at first in a stream. It came to a point twenty or twenty-five feet to the rear of plaintiffs' house and to a sidewalk maintained by them in their back yard, then along the sidewalk to the back steps leading into plaintiffs' house, where it stood and formed a pool from four to six feet in width, from which some ran on over to the east side of the plaintiffs' lot. The stream at the sidewalk was eighteen inches wide. It was a thick, dirty, putrid liquid of a black-brown color with distressing odor. In the summer time, plaintiffs were compelled, on account of the stench, to keep the windows in their house down and sometimes to leave. Immediately upon or soon after the overflow, defendant was notified of the condition arising and was requested to abate it. However, it continued and had not been abated at the time the suit was brought, but appears to have been between the time the suit was brought and the trial. The children played in the back yard where the ground was saturated with the overflow, although efforts were made by the plaintiffs to prevent them from doing so. In the spring of 1932, the children developed a rash upon their limbs and bodies; the little girl had fainting spells. The boy failed in his school work for 1931. They had fever in both 1931 and 1932. The little girl's skin became infected, and large sores came upon her back and legs. Neither of the children would play or eat, and both were very much run down. At the time of the trial, they, while somewhat better, did not play as they did before the tank was installed. They sat around the house and were more quiet than they had formerly been.

There was evidence of an expert character by Dr. Frazier, a witness upon the trial, tending to show that the injuries sustained by the children, as indicated by the symptoms described to him and as testified to by other witnesses, could have been occasioned by the conditions created and existing upon and about plaintiffs' premises from the septic tank and the overflow therefrom and as a direct result therefrom.

Upon the trial, the plaintiffs appear to have abandoned any claim or claims for damages for deterioration of the usable rental or market value of their property. At least, it does not appear from the record that any evidence was introduced with respect to such values.

The petition, with the above and other allegations, sufficiently states a cause of action.

Upon the trial, at the close of plaintiffs' evidence, the defendant requested an instruction directing a verdict in its behalf, which was by the court refused. Again, at the close of the whole evidence, defendant renewed its request for a directed verdict, which was again refused.

OPINION.

1. Upon this appeal, defendant assigns error upon the trial as follows:

"I.

"The court erred in refusing to give the peremptory instruction for defendant, offered by defendant at the close of plaintiffs' case.

"II.

"The court erred in refusing to give the peremptory instruction for defendant, offered by defendant at the close of all the evidence.

"III.

"The court erred in permitting the witness, Dr. Frazier, over the objection of the defendant, to state his conclusions that plaintiffs' children had been suffering from streptococci, and that these germs came from the overflow from defendant's septic tank.

"IV.

"The court erred in submitting to the jury, over defendant's objection, the subject of permanent injury to the health of plaintiffs' children."

2. The burden of defendant's complaint with respect to the refusal of the trial court to grant its request for a directed verdict at the close of the whole evidence, as further gathered from its points and authorities and argument following in the brief, is that plaintiffs' case, as submitted by the court, was, under...