McCord Rubber Company v. St. Joseph Water Company

• Decision Date: 25 May 1904
• Citation: 81 S.W. 189,181 Mo. 678
• Parties: McCORD RUBBER COMPANY, Appellant, v. ST. JOSEPH WATER COMPANY et al
• Court: Missouri Supreme Court

81 S.W. 189

181 Mo. 678

McCORD RUBBER COMPANY, Appellant, v. ST. JOSEPH WATER COMPANY et al

Supreme Court of Missouri, First Division

May 25, 1904

Appeal from Buchanan Circuit Court. -- Hon. W. K. James, Judge.

Affirmed.

Thomas J. Porter, Vinton Pike and Geo. W. Groves for appellant.

(1) As water was not needed or used upon August's premises and as the service-pipe was left exposed to the elements so that the water was likely to freeze, burst the pipe, escape and do damage to the neighboring premises, the case is within the principle laid down in Rylands v. Fletcher, 4 Hurl. & C. 263, 3 H. L. 330. The water was likely to do mischief because it was likely to escape. When August notified the water company to turn off the water, both August and the company knew that it was unnecessary to allow the water connection to remain, and when August, supposing the company had complied with his request to turn it off, left the cellar doors open and the broken windows unreplaced, the element of imminent actual danger was added and a threatening nuisance existed. No proof of negligence is required. Water Co. v Olinger, 44 N.E. 238; Berger v. Gas Light Co., 62 N.W. 336. The latter case is understood to limit the doctrine of former cases in Minnesota adopting Rylands v Fletcher, and states the rule which supports the plaintiff's case as follows: The essential condition of liability, without proof of negligence on the part of the owner, for injury to others by the escape of things kept by him on his premises, is that the natural tendency of things kept is to become a nuisance or to do mischief, if they escape. The authorities on the general subject are cited in 2 Jaggard on Torts, 833, et seq. August, and, after request to cut off, the water company, are held to have known the condition of the pipes on August's premises. In Tucker v. Railroad, 7 So. 124, plaintiff's husband was killed by the falling of defendant's lumber sheds, the supports of which had been weakened by trespasses of which defendant was aware. The court said: "The owner must know the condition of his property, and the company was aware of these trespasses, and the effect they had to weaken the buildings. It was its duty to warn the public of danger. There is, in our opinion, not the slightest doubt of the responsibility of the defendant company." The same principle is applied in McCauley v. Norcross, 155 Mass. 584, and cases cited. (2) The duty of defendants arose from the fact that the water connection was unnecessarily maintained. If August had use for the water and it was connected and used in the ordinary way, ordinary care only would have been required of him. It would not have been ordinary care for him to leave the pipe exposed to extreme cold, considering the damage likely to occur from freezing and bursting of the pipe. To leave the pipe thus exposed was maintaining on his premises something more than ordinarily dangerous, which imposed upon him more than ordinary care. "Where the consequence of negligence will probably be serious injury to others, and where the means of avoiding the infliction of injury upon others are completely within the party's power, ordinary care requires almost the utmost degree of human vigilance and foresight." Cobb v Railroad, 149 Mo. 60; Pollett v. Long, 56 N.Y 200; Shrewsbury v. Smith, 12 Cash. 177; Brookfield v. Walker, 100 Mass. 94. In the Cobb case the defendant knew the condition of its property and the damage likely to occur from its use, and defendant was held negligent in law.

Brown & Dolman for respondent St. Joseph Water Company.

(1) Neither the order of record filing the bill of exceptions nor any other part of the record proper contains any identification of it. For this reason there "is no bill of exceptions," and there being no error suggested in the record proper, the judgment should be affirmed. Reno v. Fitz Jarrell, 163 Mo. 411; State v. Baty, 166 Mo. 561; State v. Weinegard, 168 Mo. 490; State v. May, 168 Mo. 122; Westheimer v. McInerny, 67 S.W. 725. (2) If the issue was properly tried as between the plaintiff and either defendant, the judgment should stand as to such defendant. Hunt v. Railroad, 89 Mo. 607; La Riviere v. La Riviere, 97 Mo. 84; Kleiber v. Railroad, 107 Mo. 254; State ex rel. v. Tate, 109 Mo. 265. (3) The case was submitted for plaintiff on such instructions as it chose to ask, nothing that it requested having been refused. "This is a civil case, and it is firmly established that in civil cases a failure to instruct on propositions not requested by counsel does not constitute error." Fearey v. O'Neill, 149 Mo. 477; Wheeler v. Bowles, 163 Mo. 409; Browning v. Railroad, 124 Mo. 71; Harmon v. Donoho, 153 Mo. 274. (4) The parties are bound by the positions assumed by them in their pleadings and instructions in the trial court. Having sought in its petition to recover upon the ground that the defendants, knowing that the conditions were such in the August cellar that the pipes were liable to freeze, carelessly and heedlessly neglected to shut off the water, by reason of which the pipes froze; and having in its second instruction defined to the jury the degree of care required under the circumstances, plaintiff is now estopped from claiming that neither knowledge of the conditions or negligence is necessary to a recovery. Horgan v. Brady, 155 Mo. 668; Tomlinson v. Ellison, 104 Mo. 112; Tetherow v. Railroad, 98 Mo. 85; Jennings v. Railroad, 99 Mo. 399; Whitmore v. Supreme Lodge, etc., 100 Mo. 47; Becht v. Becht, 168 Mo. 532; Dunnigan v. Green, 165 Mo. 113; Womach v. St. Joseph, 168 Mo. 242. (5) We understand that, notwithstanding the theory of his pleadings and instructions, the plaintiff now claims that he was entitled to recover without proof of negligence, on the ground that one is so liable for injury to others by the escape of things kept by him on his premises when "the natural tendency of things kept is to become a nuisance or to do mischief if they escape." This is supposed to be the doctrine of Rylands v. Fletcher, L. R., 3 H. L. 330, but it is not the law in the United States. Brown v. Collins, 53 N.Y. 446; Lorce v. Buchanan, 51 N.Y. 476; Marshall v. Wellwood, 38 N. J. L. 339; Catron v. Nichols, 81 Mo. 80; Miller v. Martin, 16 Mo. 508; Haight's Questions and Answers, p. 374; Shearman & Redfield on Neg., 572; Everett v. Hydraulic, etc., Co., 23 Cal. 225; Wolf v. Water Co., 10 Cal. 541; 1 Thompson on Negligence, p. 101; Blyth v. Water Works Co., 11 Exch. 781; Fausto Cosulich v. Standard Oil Co., 122 N.Y. 118; Cooley on Torts, p. 570; Vieth v. Hope Coal & Salt Co., 51 W.Va. 96.

Culver, Phillips & Spencer for respondent August.

(1) Where a person brings water upon his premises he is not liable for damages to an adjoining proprietor if it escape without his negligence; and the court did not err in so instructing the jury. The English doctrine that a person bringing a dangerous element upon his own premises must keep it in at his peril, and is liable in damages if it escapes even without negligence on his part, does not obtain in this State nor in America; and Rylands v. Fletcher, 3 H L. 330, relied upon by appellant, has been repudiated in many States. Murphy v. Gillam, 73 Mo.App. 487; Griffith v. Lewis, 17 Mo.App. 611; Brown v. Collins, 53 N.H. 446; Marshall v. Willwood, 38 N. J. L. 341; Losee v. Buchanan, 51 N.Y. 476; Everett v. Flume Co., 23 Cal. 225; Whitaker's Smith on Negligence (2 Ed.), p. 92, note 4; 1 Tiffany on Modern Law Real Prop., sec. 299; Haight's Questions and Answers, 374; Cooley on Torts, p. 570-573; Shearman & Redfield on Neg. (1 Ed.), secs. 510, 512, 513, 514. In Losee v. Buchanan, supra, the court, referring to Rylands v. Fletcher, said that the conclusion therein was "reached by the learned judge mainly by applying to the case the same rule of liability to which owners are subjected by the escape of their live animals." And the court proceeds as follows: "It is sufficient, however, to say that the law, as laid down in those cases, is in direct conflict with the law as settled in this country. (Angell on Water Courses, sec. 336; Tapham v. Curtis, 5 Vt. 371; Todd v. Cochell, 17 Cal. 97; Everitt v. Hydraulic Co., 23 Id. 225; Shrewsbury v. Smith, 12 Cush. 177; Livingston v. Adams, 8 Cow. 175; Bailey v. Mayor of New York, 2 Hill 531; Pixley v. Clark, 35 N.Y. 524; Sheldon v. Sherman, 42 Id. 484.)" (2) A litigant must try his case in the appellate court upon the same theory on which he submitted it below; and even if the trial court did err in instructing the jury for defendant August that he was not liable if he was not negligent, appellant can not complain on appeal if its own instructions submitted the case on the same theory. Even if Rylands v. Fletcher announces the law applicable to this case, and the defendant August was liable if, having permitted the water to be upon his premises, it escaped without his negligence, appellant is in no position to complain here that the trial court instructed the jury on behalf of August that he was not liable if he was not negligent, because plaintiff's petition is grounded upon negligence, and its own instructions tell the jury that it was not entitled to recover unless August was negligent. The cases all hold that a party can not submit his case on one theory in the trial court and ask to have it reviewed on another theory in the appellate court. Minton v. Steele, 125 Mo. 181; Harper v. Moss, 114 Mo. 317; Trigg v. Taylor, 27 Mo. 245; Walker v. Owens, 79 Mo. 563; Tomlinson v. Ellison, 104 Mo. 105; Harte v. Seete, 104 Mo. 315; Whitascheck v. Glass, 46 Mo.App. 209; Garst v. Good, 50 Mo.App. 149; Mantz v. Maguire, 52 Mo.App. 136; Cody v. Vaughan, 53 Mo.App. 169; Queenback v. Arnold, 55 Mo.App. 286. Where appellant adopts a certain theory in his instructions,...