McGrath v. Heman Const. Co.

• Decision Date: 02 April 1912
• Citation: 145 S.W. 875
• Parties: McGRATH et al. v. HEMAN CONST. CO.
• Court: Missouri Court of Appeals

145 S.W. 875

McGRATH et al. v. HEMAN CONST. CO.

St. Louis Court of Appeals. Missouri.

April 2, 1912.

Rehearing Denied April 16, 1912.

1. TRIAL (§ 133)—CONDUCT OF COUNSEL— IMPROPER REMARKS—OBLIGATION OF COURT.

Where objection is made to improper remarks of counsel during the examination of jurors on their voir dire, the court must check counsel.

2. NEGLIGENCE (§ 15)—PERSONS LIABLE.

In an action against an independent contractor of a city to grade and pave an alley for injuries to a building adjacent thereto, evidence of acts of officers of the city, causing additional injuries to the building after the acts of the contractor, was inadmissible against the contractor.

3. EVIDENCE (§ 553)—EXPERT OPINIONS— HYPOTHETICAL QUESTIONS.

In an action for negligent injuries to a building, an experienced contractor and builder testified to a thorough examination subsequent to the injury, and that the building could have been repaired at the time of his inspection, but also stated that he had never seen the building before the injury. He was then asked: "Assuming that prior to the injury the north wall was intact and the interior in good condition, what would have been the cost of restoring it to that condition after the injury?" Held, that the question was improperly excluded, although it was somewhat general, and no details were given as to the plans or construction of the house, since cross-examination by opposing counsel would have afforded a sufficient test as to the information or knowledge of the witnesses.

4. DAMAGES (§ 217)—INJURIES TO REAL PROPERTY—INSTRUCTIONS.

Where, in an action for damages to a building, the petition alleged the rental value thereof, an instruction on the measure of damages, which did not limit the damages to the rental value alleged, was erroneous, under the rule that the value stated in the petition is the limit of the measure of damages recoverable.

5. APPEAL AND ERROR (§ 586)—RECORD— "ABSTRACT."

The word "abstract," in Rev. St. 1909, § 2048, providing for filing an abstract when a cause is not brought up on a full transcript, and in court rule 15 (123 S. W. vi), prescribing what is necessary to an abstract, and providing that the evidence shall be stated in a narrative form, means an abbreviation or a summary; and an abstract stating in narrative form the evidence, so as to present the facts necessary to an understanding of the points in issue, is sufficient.

For other definitions, see Words and Phrases, vol. 1, p. 46; vol. 8, p. 7560.]

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Action by Bridget McGrath and others against the Heman Construction Company and another. From a judgment for plaintiffs, defendant Construction Company appeals. Reversed and remanded.

Plaintiffs, owners of a house and lot in the city of St. Louis, brought their action against the city of St. Louis and the Heman Construction Company for damages to the building, alleged to have been sustained by the act of defendants in connection with the construction of an alley, on the line of which one wall of the building was situate, the contract for the construction of the alley having been awarded by the city to the Heman Construction Company. It appears that at the former trial of this case plaintiffs, under the ruling of the court, took an involuntary nonsuit as to the city. Filing a motion to set aside this nonsuit and for a new trial, the motion was sustained by the circuit court and a new trial ordered. From this action the city appealed to the Supreme Court where the judgment of the circuit court in setting aside the nonsuit and granting a new trial was reversed and the cause remanded to the circuit court with directions to set aside the order granting plaintiffs a new trial as to the city of St. Louis and directing judgment for the city. The opinion of the Supreme Court will be found under the title McGrath v. City of St. Louis, 215 Mo. 191, 114 S. W. 611. The cause then went to trial in the circuit court, apparently upon the amended petition which had been before the Supreme Court, and while it appears to have been tried as against the Heman Construction Company alone, there was no formal dismissal nor verdict as to the city, although by an instruction of the court the jury were directed to find for the city. It appears that after the filing of a motion for new trial by the Heman Construction Company the cause was dismissed by plaintiffs as to the defendant City of St. Louis. There was a verdict against the defendant Heman Construction Company in the sum of $2,260, and judgment accordingly, from which judgment the Heman Construction Company, after filing its motion for new trial and excepting to the action of the court in overruling that motion, has duly perfected its appeal to this court.

While the first count of the petition assigns the acts of negligence relied upon substantially as set out in the opinion of the Supreme Court, it is well to state the claims for damages with a little more particularity than is there given.

The damages claimed are $3,000, "by reason of the sinking, breaking, crumbling and shattering of said building and fences," and the great expense plaintiffs will be put to in restoring and repairing the same, "because it is and will be necessary to completely tear down the remainder of said house left standing after and by the undermining thereof aforesaid and rebuild and restore the same to its condition before said unlawful conduct and action of defendant." The further sum of $150 is claimed for expenses incurred in bracing and shoring the wall and to prevent further destruction thereof; "that by reason of said fall of said walls and destruction of said house, plaintiffs were and have been unable to occupy said house, that the rental value thereof was $20 per month and that they will not for a long time hereafter be able to occupy same, whereby they have been damaged at the rate of $20 per month ever since said date, November 10, 1902." Three hundred dollars for injury to furniture, carpets, etc., is claimed, as also $10 for removing coal, the total amount of damages claimed in this first count being placed at $4,500. It was on this count of the petition that the jury returned its verdict in favor of plaintiffs and against the Heman Construction Company, returning a verdict in favor of defendant on the second count of the petition, that count sounding in damages for willful, wanton and intentional destruction of the wall by undermining it as before stated. While the evidence on this trial was not as full as on the former trial, it will be sufficient to refer to the report above cited for a general idea of it.

The assignments of error made by counsel for appellant are: First, to the overruling by the trial court of objections of defendant to remarks of plaintiffs' counsel in his opening statement; second, to the error of the trial court in admitting evidence of what the city of St. Louis did to plaintiffs' house about six months after the alleged commission by defendant of the negligent acts complained of; third, to the error of the trial court in excluding the evidence of a witness; fourth, to the error of the trial court in giving of its own motion instruction No. 4; the fifth and sixth errors assigned being to the amount of the verdict as not supported by the evidence and as so excessive as to indicate passion or prejudice on the part of the jury; the final assignment being to the error of the court in overruling the motion for new trial.

Rodgers & Koerner, for appellant. H. A. Loevy, for respondents.

REYNOLDS, P. J. (after stating the facts as above).

First. When the panel was being examined on voir dire, counsel for plaintiffs made statements that are claimed to have been prejudicial. It is sufficient to say that objection having been made to these remarks, the court should have checked counsel, but we do not think that failure to do so in this instance constitutes reversible error. We notice it now only to prevent its recurrence...