Kinealy v. Southwestern Bell Tel. Co.

• Decision Date: 04 June 1963
• Docket Number: No. 49656,No. 1,49656,1
• Citation: 368 S.W.2d 400
• Parties: Harry G. KINEALY and Lucile A. Kinealy, Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY a Corporation, Respondent. . Division
• Court: Missouri Supreme Court

Page 400

368 S.W.2d 400

Harry G. KINEALY and Lucile A. Kinealy, Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY a Corporation, Respondent.

No. 49656.

Supreme Court of Missouri. Division No. 1.

June 4, 1963.

Marvin Klamen, Clayton, for plaintiffs-appellants, Klamen & Grand, Clayton, of counsel.

John Mohler, Donald K. King, Philip L. Wettengel, St. Louis, for respondent, Southwestern Bell Telephone Co.

HOUSER, Commissioner.

Plaintiffs Harry and Lucile Kinealy, husband and wife, sued Southwestern Bell Telephone Company for loss of and damages to their land, claimed to have been caused by the cutting of ditches for underground telephone cables. Plaintiffs asserted ownership of two parcels of contiguous lands, Lots A and B, located on the south side of State Highway 21, where the highway crosses the Meramec River in St. Louis County. Lot A, the western boundary of which is the river and the northern boundary of which is the bridge right of way, is a pie-shaped wedge 1200 feet long and approximately 60 feet wide at the north end and 30 feet wide at the south end. Adjoining Lot A on the east is Lot B, a 14-acre tract. Butler Hill Road runs perpendicular to the highway (roughly parallel with the river) as an easement along the common boundaries of Lots A and B. This road, an asphalt pavement 22 feet wide, was built on a 40-foot right of way.

The first four counts of the petition charged that in February, 1956 the company cut a ditch and laid a cable on the west or river side of the road, allegedly on plaintiffs' Lot A, as a result of which a portion of Lot A slipped, slid, fell into and was washed away by the river. These counts were based upon loss of lateral support, nuisance, trespass and negligence. Plaintiffs prayed for $25,000 damages in Counts I and II; $75,000 actual and $200,000 punitive damages in Count III, and $25,000 actual and $250,000 punitive damages in Count IV.

Counts V, VI, VII and VIII, based upon loss of lateral support, nuisance, trespass and negligence, respectively, related to the action of the company in July, 1957 when it cut a second ditch and laid a cable on the east side of the road, allegedly on plaintiff's Lot B, as a result of which a portion of Lot B was alleged to have slipped, etc. into and was washed away by the river. Plaintiffs prayed for $20,000 damages in Counts V and VI; $60,000 actual and $100,000 punitive damages in Count VII, and $20,000 actual and $100,000 punitive damages in Count VIII.

Counts IX and X related to the erection of a telephone pole on plaintiffs' land. In Count IX plaintiffs prayed for $10,000 actual damages, and in Count X the prayer was for $30,000 actual and $45,000 punitive damages.

The total amount prayed for in all counts was $1,005,000. Counts I to VIII, inclusive, terminated in a directed verdict for defendant. Plaintiffs voluntarily dismissed Count IX. The case went to the jury on Count X. A verdict for plaintiffs for $1 was returned, and judgment was rendered accordingly. Plaintiffs appealed from the orders of the circuit court overruling plaintiffs' motions to set aside the judgment and for a new trial. Appellants' intent being manifest, we treat this as an appeal from the judgment sustaining defendant's motion to direct a verdict on Counts I through VIII, and from the judgment on Count X. In the oral argument plaintiffs' counsel conceded that the issues of lateral support, nuisance and negligence have been abandoned. This leaves for review the question of the propriety of the action of the court in directing a verdict for the company on the issue of trespass; a question of the admission of evidence; the properiety of an instruction, and the failure to grant a new trial on the issue of damages only on Count X, for inadequacy of the verdict.

The first question on the issue of trespass is that of causation. Did plaintiffs make a submissible cause on the question whether the ditching operations of the company constituted the proximate cause of the land slides? The question of proximate cause is usually one for the jury, and may be shown by circumstantial evidence. Curtis v. Fruin-Colnon Contracting Co., 363 Mo. 676, 253 S.W.2d 158, 161. Was there sufficient circumstantial evidence to submit this case to the jury, considering the evidence and the inferences reasonably to be drawn therefrom in the light most favorable to plaintiff?

Lot A was 'made land.' It had been built up or filled in with brick prior to 1951. A record high water level was recorded in 1950 in the areas of Lots A and B. As the water receded on that occasion there was no discernible or extensive damage to Lot A. After plaintiffs assumed control of Lots A and B in 1955 they improved Lot A by filling in with more brick, rock and dirt, to build up the river bank and level the lot for use as a private park. For public use of Lot A they charged admissions. In February, 1956 the company, using a crawlertype trencher, trucks and equipment, ditched along the river side of Butler Hill Road and buried a telephone cable. The ditch, 18 inches wide and approximately 3 feet deep, was cut between 2 and 3 feet west of west edge of the asphalt pavement of Butler Hill Road. When the company employees left the job they left a mound of loose, untamped dirt 6 or 8 inches high on top of the ditch. No testimony was introduced on the question whether the company packed or tamped the dirt as they replaced it in the ditch, under the loose and untamped mound left on top. There was no high water until thirteen months later, in March, 1957, when a flood occurred on the Meramec River, inundating this ditch. A couple of days later, when the water was receding, portions of Lot A fell, slid into and were washed away by the river. The loss of the land occurred within one hour's time. A crack 2 or 3 inches wide appeared at the side of Butler Hill Road, running a distance alongside the road, on the river side, parallel to and immediately adjacent to the road and the telephone cable. It looked like the earth had opened up. Perpendicular cracks then began to appear at the north end of Lot A, commencing at the water's edge and ending at the crack alongside the road. Then these perpendicular cracks began to appear, one by one, going toward the south end of Lot A. A piece of land, from water's edge to the crack near the road, would drop or settle a foot or so, remain there for an instant, then break off in irregular pieces, slide, and wash away into the river, carrying with it trees, earth and fill. A sheer bank 15 to 20 feet high from normal water level to the level of the road on Lots A and B was left exposed. When the land washed away the telephone cable was exposed at places along the line where the crack first appeared near the road, leaving the cable in mid-air a foot from the bank. The 1957 washout did not extend to the road. On July 2, 1957 a record high flood occurred, but there was no observable damage in the nature of a fallout or washout in this immediate area as a result of this flood. Shortly after July, 1957, the company cut another ditch and installed another cable, this time on the east side of the road, again leaving a six-inch mound of earth, apparently untamped, on top of the ditch. Eight months later, in March, 1958, another flood occurred, and as the water receded more land washed away, breaking into and washing away parts of the Butler Hill Road, again exposing the telephone cable about 4 feet below the road level.

Plaintiffs' expert geologist defined land slides; discussed the tendency of a mass of soil to move in a lateral direction away from the slope; sheer strength; the effect of weather conditions on sheer strength; the 'resisting moment'; the 'plane of failure'; the effect on sliding of shortening the plane of failure; the factor of safety in balance; the effect of removal of material on failure; the tendency of impervious soil to concentrate itself approximately one foot below the surface along a river bank. He testified that a ditch 2 or more feet deep would breach this impervious layer and allow water to enter the plane of failure; that if the layer were impervious water would be prevented from seeping down and along a plane of failure; that fill in the form of brick tends to stabilize the slope and resist the tendency to slide; that tree roots also would tend to deter failure, and that a mechanical ditcher would sever the roots, thus encouraging motion along a plane of failure. He knew nothing, however, about the trees or roots present in this case. He testified that a ditch 2 or 3 feet deep in a depth of 17 to 20 feet would be a relatively large percentage of the plane of failure; that if the ditch were not tamped, water would be introduced into the plane of failure; that this water would lubricate the mass, reduce sheer strength, and increase the tendency of a bank to slide; but that if the ditch were properly tamped it would tend to shed water. The expert said it was necessary to consider the strength or nature of the soil and the stresses involved in determining the cause of land slides. This is done by actual inspection and taking of samples. Without a test of this soil it cannot be said how much resistance was present prior to the slide. A test of the material in the adjoining area which did not slide will not suffice, since soil along a river bank is highly variable. In this case, not having been able to take soil...