De Mayo v. Kansas City

• Citation: 210 S.W. 380
• Decision Date: 01 March 1919
• Docket Number: No. 11812.,11812.
• Parties: DE MAYO v. KANSAS CITY.
• Court: United States State Supreme Court of Missouri

210 S.W. 380

DE MAYO v. KANSAS CITY.

No. 11812.

Supreme Court of Missouri, Division No. 1.

March 1, 1919.

Rehearing Denied March 28, 1919.

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Action by Frank De Mayo against Kansas City. Judgment for plaintiff was affirmed by the Court of Appeals, and the case is certified to the Supreme Court. Affirmed.

A. F. Evans and A. F. Smith, both of Kansas City, for appellant.

Joseph F. Aylward and Calvin & Rea, all of Kansas City, for respondent.

WOODSON, J.

This suit was instituted in the circuit court of Jackson county by the plaintiff to recover of the defendant the sum of $299.50 damages done to his premises and furniture, through the alleged negligence of the latter in flooding the same with water.

The plaintiff had judgment for $289.50, and the defendant duly appealed the cause to the Kansas City Court of Appeals. The latter court affirmed the judgment, one of the judges dissenting, because in his opinion the judgment was in conflict with the law as announced by this court in the case of Cassidy v. St. Joseph, 247 Mo. 197, 152 S. W. 306, and on that account the cause was certified to this. court. The cause has been submitted to this court upon the same briefs and arguments that were used in the Court of Appeals.

After a careful consideration of the cause, in our opinion the majority opinion of the. Court of Appeals correctly declared the law of the case, and we adopt it as the opinion of this court. Formal parts omitted, it reads as follows:

"Plaintiff's action is for damages. He recovered judgment in the trial court. The facts are that he owned a pool hall situated in the basement of a building at Eighth and Walnut streets, in Kansas City. He had occupied the premises about seven months, when the hydrant or fire plug at the curb in front of his place was turned on for the purpose of flushing the streets, and water escaped from the bottom of it and ran or seeped through the area wall into plaintiff's room, flooding the floor from two to six inches in depth. It was the first and only trouble he had since his occupation, though he had heard that a prior tenant had a similar complaint on one occasion.

"The water escaped through the drain at the bottom of the hydrant or plug. The cause of the escape was failure of the city employés to properly and securely turn off the water when they ceased to use it, there being a hole at the bottom of every hydrant or fire plug, so that when it is closed properly the small quantity of water left standing in the hydrant will drain out. But, if not properly shut off, more or less water would continue to flow and find its way through the drain into the ground. In the present instance, the water seeping into plaintiff's premises was stopped by completely turning off the hydrant.

"An interesting case...