Meinecke v. Stallsworth

• Decision Date: 05 June 1972
• Docket Number: No. 25593,25593
• Citation: 483 S.W.2d 633
• Parties: Roy MEINECKE and Margaret Meinecke, Plaintiffs-Appellants, v. Elwood STALLSWORTH and Nina Stallsworth, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 633

483 S.W.2d 633

Roy MEINECKE and Margaret Meinecke, Plaintiffs-Appellants, v. Elwood STALLSWORTH and Nina Stallsworth, Defendants-Respondents.

No. 25593.

Missouri Court of Appeals, Kansas City District.

June 5, 1972.

Motion for Rehearing and/or Transfer to Supreme Court

Denied July 6, 1972.

Application to Transfer Denied Sept. 11, 1972.

R. H. Moore, Kansas City, for plaintiffs-appellants.

R. E. Moulthrop, Bethany, for defendants-respondents.

PER CURIAM.

The plaintiffs filed a petition denominated 'Petition in Equity for Damages', in two counts. The nature of each of these counts was determined by court and counsel in pretrial proceedings to be that Count I is an action for damages for the maintenance of a private nuisance; and that Count II is an action for injunctive relief, seeking to abate such private nuisance. The case was tried upon these theories of recovery before the court without a jury.

At the close of plaintiffs' evidence, the court sustained an oral motion to dismiss Count I of plaintiffs' petition and proceeded with the trial of the issues on Count II. At the close of all the evidence, neither side made any request for findings of fact or conclusions of law, and the court entered a judgment in favor of the defendants and against the plaintiffs on Count II of the petition. The trial court dictated into the record his reasons for his actions as to both Count I and Count II.

As to Count I, the trial court based its initial dismissal order upon the ground that no money damages had been proved. But at the close of all the evidence, he ruled that there was a failure of proof on both Counts I and II sufficient to establish that the defendants had in fact maintained a private nuisance.

It is from these judgments of the trial court that this appeal is taken. The parties hereto will be referred to here as 'plaintiffs' and 'defendants'.

This trial began on Wednesday, July 8, 1970. On the preceding Monday, July 6, 1970, the defendants had filed an amended answer with the clerk of the court and apparently had mailed a copy thereof to counsel for the plaintiffs at his office in Kansas City, Missouri, which copy was not received by counsel until Thursday, July 9, the day after the conclusion of the trial. At the opening of the trial, the following colloquy appears in the transcript:

'MR. MOULTHROP: * * * I would like for the record to show, Judge, leave granted to file amended answer, copy of which I have furnished Mr. Moore.

THE COURT: Leave is so granted and it is ordered filed.

All right, Mr. Moore, you may proceed by perhaps a somewhat brief opening statement.

MR. MOORE: Yes.'

The record is not clear as to whether or not counsel for the plaintiffs actually received a copy of the amended answer at the start of the trial in Harrison County. There is at least an inference in the post trial motions and in the briefs here that counsel did not see the answer until he returned to his office in Kansas City on Thursday, July 9, 1970.

We do not undertake to decide this however, since, of course, counsel would be furnished a copy thereof upon request of counsel or the court. The amended answer became and was a part of the court file at the beginning of the trial and was available to plaintiffs' counsel along with all other court papers.

Following the trial of this cause with the results above noted, plaintiffs filed their motion for a new trial, or in the alternative, to amend the judgment and opinion. The only part of this motion which complies with the rules as to specificity pertains to the error charged with reference to the filing and service of defendants' amended answer.

Therefore, we are faced at the outset with the plaintiffs' claim that the trial court erred in granting leave to defendants to file an amended answer on the morning of the trial. Since the case was for trial and had long been at issue, leave of court was required (in the absence of written consent of the plaintiffs) but such leave to amend should be 'freely given when justice so requires'. Section 509.490 RSMo, V.A.M.S.; Rule 55.53, Rules of Civil Procedure, V.A.M.R.; Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360.

A close comparison of the amended answer with the original answer shows that basically, the amendments consist of a long account of allegations of personal misconduct on the part of the plaintiff, Roy Meinecke, most of which do not have any apparent bearing on the real issues before the court. Some evidence on these extraneous matters was improperly admitted by the trial court over plaintiffs' objections, but the trial court indicated in his statement of the reasons for his decision that such evidence did not form any basis for the result reached, but rather, the trial court ruled the case upon the sole ground above noted. It may be assumed that he disregarded such evidence, and in arriving at our independent conclusions, we will certainly do so.

Upon the filing of this amended answer, the plaintiffs were not required to file a reply. Section 509.010 RSMo; Rule 55.01, Rules of Civil Procedure; Hillhouse v. City of Aurora, Mo.App., 316 S.W.2d 883, 890. However, they may have sought leave of court to reply and time in which to do so. Other avenues of action were obviously open to them under the circumstances, namely, objection to the filing of such amendment, motions directed to the new allegations of the amended answer, or application for a trial continuance. But as shown from the above excerpted colloquy at the start of the trial, they resorted to none of these, but stood mute and proceeded to trial. Thus, they waived any alleged error incident to the leave to file the amended answer.

In the case of Browder v. Milla, Mo.App., 296 S.W.2d 502, the rule was thus stated, l.c. 508:

'* * * Plaintiff contends the trial court erred in permitting defendant to file Count IV for the first time on the morning the trial of the case was to commence. However, so far as the record discloses, plaintiff did not claim surprise or request a continuance in order to prepare a defense to the count, but only generally objected to such filing. Under these circumstances it was discretionary with the trial judge as to whether or not to permit the amended counterclaim containing Count IV. We find no abuse of that discretion * * *'

The courts have universally held that under our statutes and rules, the granting of permission to amend pleadings is discretionary with the trial court and his judgment in that regard is not to be criticized unless there is a clear abuse of such discretion. Hamilton v. Slover, Mo., 440 S.W.2d 947, 954; Stewart v. Stewart, Mo.App., 277 S.W.2d 322, 325, 326; Lee v. W. E. Fuetterer Battery & Supplies Co., 323 Mo. 1204, 23 S.W.2d 45; Dyer v. Harper, 336 Mo. 52, 77 S.W.2d 106.

In Pilkington v. Pilkington, 230 Mo.App. 569, 93 S.W.2d 1068, this court said, l.c. 1071:

'It is the established rule that an objection to the filing of an amended petition should be made when leave to file the same is asked or granted and that, in order to avail himself of error in the filing of an amended petition by the plaintiff, the defendant should stand on the rule. He waives the objection by answering such amended petition or going to trial thereon.'

Moore v. Parks, Mo., 458 S.W.2d 344; Osborn v. McBride, Mo., 400 S.W.2d 185, 188, 189.

The plaintiffs claim in their after-trial motions below (although such claim was not asserted at the trial) that the filing of the amended answer on the morning of the trial was such a 'surprise' to them that they should have been granted a new trial under the terms and provisions of Rule 78.01, Civil Rules of Procedure, which provides in part:

'* * * the court may award a new trial of any issue upon good cause shown and in any case where there has been * * * surprise of a party or his attorney * * *'

The term 'surprise' as used in this rule has been defined in Hamm v. Hamm, Mo.App., 437 S.W.2d 449 at l.c. 453, as follows:

"Surprise,' as used in relation to the granting of a new trial or in applying for equitable relief against judgments, refers to 'such unforeseen events, misfortunes, losses, acts or omissions, as are not the result of any negligence or misconduct in the party' * * * or 'an unforeseen disappointment in some reasonable expectation against which ordinary prudence would not have afforded protection.' * * *' (Emphasis the court's in Hamm)

If a litigant is surprised by something that occurs during the trial, he cannot sit mutely by, but must call the court's attention to the fact when it occurs and seek relief or corrective action then. Keyte v. Parrish, Mo.App., 399 S.W.2d 601, 605; Tuttle v. Tomasino, Mo., 336 S.W.2d 683, 689.

We hold that the court below did not abuse its discretion in granting leave for the defendants to file their amended answer on the morning of the trial and that by failing to object or seek other relief, the plaintiffs are now precluded from asserting this action as error.

We have carefully reviewed the transcript of testimony to determine whether or not there was sufficient competent evidence favorable to the plaintiffs to establish a cause of action for damages and injunctive relief upon the theory that the defendants maintained a private nuisance so as to interfere with the property or personal rights of the plaintiffs. We have reached the conclusion that the evidence does not rise to the dignity of such proof.

Before reviewing the evidence, certain general principles regarding this type of action must be kept in mind. At common law, a 'nuisance' is a wrong arising from an unreasonable or unlawful use of property to the discomfort, annoyance, inconvenience or damage of another, and usually comprehends continuous or recurrent acts. Some of these occurrences fall within the classification of unlawful nuisances or nuisances per se. Others cannot be so categorized, but depend upon proof of...