Krodinger v. Citizens' Bank of Maplewood

• Decision Date: 06 December 1927
• Docket Number: No. 19984.,19984.
• Citation: 300 S.W. 311
• Parties: KRODINGER v. CITIZENS' BANK OF MAPLEWOOD
• Court: Missouri Court of Appeals

300 S.W. 311

KRODINGER v. CITIZENS' BANK OF MAPLEWOOD

No. 19984.

St. Louis Court of Appeals, Missouri.

December 6, 1927.

Rehearing Denied December 20, 1927.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

"Not to be officially published."

Action by Alois L. Krodinger and wife against the Citizens' Bank of Maplewood and another, in which named defendant filed a counterclaim. Plaintiffs took an involuntary nonsuit as to defendant William M. Stites. From a judgment for plaintiffs in a nominal amount, and from an order denying plaintiffs' motion to set aside the nonsuit as to defendant Stites, plaintiffs appeal. Reversed and remanded.

Marsalek & Stahlhuth, of St. Louis, for appellants.

A. V. Lashly and Ailworth, Stout & Spencer, all of St. Louis, and M. F. O'Brien, of Maplewood, for respondents.

DAUES, P. J.

This is an action in which plaintiffs seek to recover damages to their real estate, growing out of the excavation of an adjoining lot by the defendants. The lot was owned by the defendant bank and was excavated by defendant Stites as contractor. The bank in its answer presented a counterclaim which, in effect, is an allegation that plaintiffs failed to shore up their property, which caused damages to defendant bank. The answer of defendant Stites is a general denial. The reply to the answer and counterclaim of defendant bank is a general denial. The petition prays for a $4,475 judgment against defendants; the counterclaim prays for $1,944.16 against plaintiffs.

At the close of plaintiffs' case the defendant Stites offered an instruction in the nature of a demurrer to the evidence, which was given. Plaintiffs took an involuntary nonsuit as to said defendant with leave to set aside. The cause then proceeded as to defendant bank before the court and jury, resulting in a verdict in favor of plaintiffs on their cause of action for the sum of 1 cent and in favor of defendant bank on its counterclaim for the sum of 1 cent. Plaintiffs duly excepted to the action of the court in receiving the verdicts. Judgment was entered in accordance with the verdict, which further adjudged that the costs incurred by plaintiffs be paid by defendant bank, and the costs incurred by defendants be paid by plaintiffs. In due time plaintiffs filed their motion to set aside the nonsuit as to defendant Stites, their motion for new trial, and their motion in arrest of judgment. All being overruled, plaintiffs have appealed.

Before reciting proof, we note respondents' counsel maintain that appellants' chief complaint cannot be considered because same relates to the admission and exclusion of testimony by the trial court, and that the motion for new trial is general and does not set out specifically the testimony and evidence which is challenged, and counsel rely upon the case of Bartner v. Darst (Mo. Sup.) 285 S. W. 449. Counsel have evidently overlooked the fact that this case has been overruled. In Bobos v. Krey Packing Co. (Mo. Sup.) 296 S. W. 157, the Supreme Court, without referring to that case, clearly announced the contrary doctrine. But more recently, in the case of Chawkley v. Wabash Ry. Co. (Mo. Sup.) 297 S. W. 20, the Supreme Court en banc expressly overruled Bartner v. Darst, supra, holding that motions for new trial which do not call the specific attention of the court to the particular evidence objected to are sufficient to preserve such objections in a civil case. Therefore our recitation of the evidence, as adduced and offered, proceeds in the light that the point is made against the court's action in ruling on the admissibility of evidence.

There is evidence tending to show that plaintiffs' lot adjoins the lot of defendant bank on the east. On the southern part of plaintiffs' lot there was a two-story brick building, with basement, approximately 2 feet east of the west line of plaintiffs' lot. This building was about 50 feet long and approximately 25 feet wide, being slightly wider on the north end. The bank's lot had a frontage of 82 feet 6 inches on the north side of Manchester avenue in Maplewood, St. Louis county, and ran northwardly to a depth of 150 feet. The bank, through its contractor, excavated the entire lot. It is admitted in the evidence that plaintiffs braced their building before the excavation started. This was done by means of timbers being placed on the east and west side of the building against the foundation, and then running iron rods through the timbers and the building immediately above the foundation so as to hold the two walls inward. These braces remained in such condition until the foundation was completed by defendants, and remained so for about three months after the excavation was completed.

There is evidence, and it does not seem to be disputed, that the wall of plaintiffs' building was cracked and the building was thereby seriously damaged. There seems to be no dispute either that the contractor in excavating the lot for the bank used a heavy steam shovel. As to the proof that Stites was the contractor doing the work for the bank, some controversy arises, and we will refer to that later.

Plaintiffs' evidence further tends to show that the bank began excavating in November, 1924, and dug down in the lot above 7 feet below the street and about 3½ feet below the bottom of the foundation of the west side of plaintiffs' building, and that in doing this work with a steam shovel the defendants used such force as to loosen the dirt in the rear of plaintiffs' building, so much so that a crevice was caused to appear in the ground about 20 feet east of plaintiffs' western line; that this crevice was large enough to place a hand into it; that the excavation remained open and uncovered for about 3 months. There is other evidence that defendants in doing the work of excavation opened up several springs in the rear of the lot and that water was caused to run into the excavation and allowed to accumulate there in great quantities; that the...