McGrath v. Heman Const. Co.

• Decision Date: 02 June 1914
• Docket Number: No. 14050.,14050.
• Citation: 167 S.W. 1086,183 Mo. App. 522
• Parties: McGRATH et al. v. HEMAN CONST. CO.
• Court: Missouri Court of Appeals

167 S.W. 1086

183 Mo. A. 522

McGRATH et al. v. HEMAN CONST. CO.

No. 14050.

St. Louis Court of Appeals. Missouri.

June 2, 1914.

1. DAMAGES (§ 111)—MEASURE—INJURY TO BUILDING.

The measure of damages for injury to plaintiff's building from defendant's excavation in an adjacent alley was the difference between the value of the building and lot just preceding the injury and its value after the injury.

2. DAMAGES (§ 138)—SUFFICIENCY OF EVIDENCE—INJURY TO PROPERTY.

Evidence, in an action for damages for injury to plaintiff's building from defendant's excavation in an adjacent alley, held sufficient to sustain a judgment for plaintiff for $2,100.

3. APPEAL AND ERROR (§ 1001)—VERDICT—CONCLUSIVENESS.

When a verdict is supported by substantial evidence, the appellate court cannot interfere therewith.

4. APPEAL AND ERROR (§ 1068)—HARMLESS ERROR—INSTRUCTIONS.

In an action for injury to plaintiff's building from defendant's excavation in an adjacent alley, error, if any, in instructing that damages should not exceed $3,000, the maximum amount claimed in the petition, was not prejudicial, where the damages were susceptible of computation by qualified witnesses, and the verdict for $2,100 was within the evidence.

5. APPEAL AND ERROR (§ 1066)—HARMLESS ERROR—INSTRUCTIONS—DAMAGES.

In such action there was no reversible error in an instruction authorizing a recovery for the value of the building "and lot," where the jury knew that no injury to the lot was claimed, and where its value was the same before and after the injury.

Appeal from St. Louis Circuit Court; Rhodes E. Cave, Judge.

Action by Bridget McGrath and husband against the Heman Construction Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

See, also, 165 Mo. App. 184, 145 S. W. 875, 163 S. W. 569.

Rodgers & Koerner, of St. Louis, for appellant. H. A. Loevy, of St. Louis, for respondents.

ALLEN, J.

This is an action by plaintiffs, husband and wife, for damages to their residence, a brick building in the city of St. Louis, occasioned by an excavation in an alley adjacent thereto, made by defendant, and whereby it is claimed that a wall of the building was undermined.

The cause of action arose in 1902. The case has had three trials below, and in each instance plaintiffs received a verdict at the hands of the jury. As originally instituted, the action proceeded against the defendant construction company and the city of St. Louis. Upon the first trial there was a verdict and judgment for plaintiffs, against the construction company only, for the sum of $1,620; the trial court sustaining a demurrer to the evidence offered by said city. Plaintiffs, coerced by the sustaining of the city's demurrer, took an involuntary nonsuit as to the latter; but the court thereafter, on plaintiffs' motion, set aside the nonsuit and ordered a new trial. Thereupon the defendant city appealed to the Supreme Court from such order, and upon such appeal it was held that the trial court had, in the first instance, properly directed the jury that the city was not liable, and erred in granting a new trial as to it. And the circuit court was directed to render judgment for the city. See McGrath v. St. Louis, 215 Mo. 191, 114 S. W. 611.

Thereafter the case went to trial against the defendant construction company alone, the appellant here. Upon the second trial there was a verdict against this appellant for $2,260, and from a judgment entered accordingly it appealed to this court. See McGrath v. Construction Co., 165 Mo. App. 184, 145 S. W. 875. The judgment was reversed and the cause remanded by this court for certain errors not necessary to be here noticed. Thereafter the cause went to trial for the third time, said last trial resulting in a verdict and judgment for plaintiffs for $2,100, from which judgment the present appeal is prosecuted.

The only point pressed upon this appeal is that the verdict is excessive. It appears that, as a result of the excavation in the alley aforesaid, a considerable portion of the north wall of said building was caused to fall. There was testimony of a number of witnesses both for plaintiffs and the defendant relative to the extent of the damage thereby occasioned to the building. One witness for plaintiffs, a contractor and builder who was familiar with the property, testified that the reasonable market value thereof— i. e. of the house and lot—prior to the injury to the building was about $2,700; and that after the injury the house was completely wrecked, describing the various cracks and other injuries thereto, leaving nothing but the ground value. The witness valued the ground at about $20 per front foot, stating that the lot had an average width of 22 feet, or, in other words, a total value of $440 for the lot alone.

Another witness for plaintiffs, an architect, who had examined the building after it was injured, described in detail the damage to it, saying that, in his opinion, the house could not have been repaired so as to make it habitable. He valued the house and lot prior to the injury at $2,500, and...