McGrath v. Heman Construction Company

• Decision Date: 02 April 1912
• Parties: BRIDGET McGRATH et al., Respondents, v. HEMAN CONSTRUCTION COMPANY, Appellant
• Court: Missouri Court of Appeals

145 S.W. 875

165 Mo.App. 184

BRIDGET McGRATH et al., Respondents, v. HEMAN CONSTRUCTION COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

April 2, 1912

March 5, 1912, Argued and Submitted

Appeal from St. Louis City Circuit Court.--Hon. Leo S. Rassieur Judge.

REVERSED AND REMANDED.

STATEMENT.--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 $ 2260, 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 $ 3000, "by reason of the sinking, breaking, crumbling and shattering of said building and fences," and the great expense plaintiffs will be put 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 twenty dollars 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 twenty dollars per month ever since said date, November 10, 1902." Three hundred dollars for injury to furniture, carpets, etc., is claimed, as also ten dollars for removing coal, the total amount of damages claimed in this first count being placed at $ 4500. 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.

Judgment reversed and cause remanded.

Rodgers & Koerner for appellant.

(1) It was manifestly improper for plaintiffs' counsel in his opening statement to the jury, before they were examined on their voir dire, to state as a fact that defendant "undermined the wall of plaintiffs' house and that the house fell in, and finally had to be removed, so that the house is now totally destroyed down to the joists of the first floor," and that he was "acquainting the jury with the facts," instead of stating that plaintiffs expected to prove such facts, or that such was plaintiffs' contention, and it was error for the court to overrule defendant's objection to these remarks. State v. Coleman, 186 Mo. 151; Rice-Stix & Co. v. Sally, 176 Mo. 107; Thompson on Trials, sec. 261. (2) The evidence of what the city of St. Louis did to plaintiffs' house six months after the commission by defendant of the acts complained of was clearly incompetent and should have been excluded. (3) Instruction No. 4, given by the court of its own motion, was clearly erroneous for two reasons: (a) It permitted the jury to assess as an element of plaintiffs' damages the rental value of the premises for such length of time as "would have been reasonably required to repair or restore said premises to their former condition," when there was no evidence tending to show the length of time that would have been thus required. Heidbrink v. United Railways, 133 Mo.App. 40; Stoetzle v. Swearingen, 96 Mo.App. 592. (b) And it fails to limit the amount for which recovery may be had for rental value to the amount specified in the petition, viz., twenty dollars per month. Radtke v. Basket & Box Co., 229 Mo. 1; Tinkle v. Railroad, 212 Mo. 445; Smoot v. Kansas City, 194 Mo. 522; Heinz v. Railroad, 143 Mo.App. 38. (4) The evidence of the witness Ferris, offered by defendant was relevant and competent and its exclusion was error. The exclusion of evidence upon a vital issue is reversible error. Grath v. Tile Co., 121 Mo.App. 245-250.

H. A. Loevy for respondents.

(1) It is a well settled principle of law, that, before a witness will be allowed to give his opinion as an expert upon a state of facts, a knowledge of which he derives from other witnesses, he must be put in possession of all the facts as ascertained or supposed on the question about which the inquiry is made. An opinion given upon a partial statement of the facts would be of no value. Rogers on Expert Testimony, p. 70; Senn v. Railroad, 108 Mo. 142; Turner v. Haar, 114 Mo. 245; Heinzle v. Railroad, 182 Mo. 554; Mammerberg v. Railroad, 62 Mo.App. 567. (2) The petition here reads: "That rental value thereof was twenty dollars 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 twenty dollars per month ever since said date, November 10, 1902." Consequently the amount of this damage was unlimited and could not be stated. And the whole amount respondents could recover was specially limited in instruction No. 3. Heinz v. Railroad, 143 Mo.App. 42; Radtke v. Box Co., 229 Mo. 20. (3) Where the judgment is manifestly for the right party, it should be affirmed, regardless of errors occurring at the trial. State ex rel. v. Jones, 131 Mo. 194; Walker v. Railroad, 68 Mo.App. 465; Cass County v. Bank, 157 Mo. 133; Grocery Co. v. Grossman, 10 Mo.App. 338; Carmody v. Hanick, 99 Mo.App. 357.

REYNOLDS, P. J. Nortoni and Caulfield, JJ., concur.

OPINION

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

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 on a new trial, if one is had.

Second. The second error assigned must be sustained. One of the respondents in the case, as also a witness for respondents over the objection and exception of appellant, were permitted to testify that after part of the wall had fallen, the city, by one of its officers, had entered upon the premises, after certain braces had been taken out that extended across the alley, and had shored up the house. This was some months after the act of appellant in excavating. As one of the respondents testified. "The city shored the house and put two or three iron bars in every room clear through the house." It was objected to this that the city coming in afterwards and putting in props and thereby doing additional damage by reason of this work done by the city, that...