Messmer v. St. Louis County Gas Co., 21501.

• Decision Date: 03 November 1931
• Docket Number: No. 21501.,21501.
• Citation: 42 S.W.2d 963
• Parties: MESSMER v. ST. LOUIS COUNTY GAS CO.
• Court: Missouri Court of Appeals

42 S.W.2d 963

MESSMER v. ST. LOUIS COUNTY GAS CO.

No. 21501.

St. Louis Court of Appeals. Missouri.

November 3, 1931.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte. Judge.

"Not to be officially published."

Action by Edgar L. Messmer against the St. Louis County Gas Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

A. E. L. Gardner, of Clayton, for appellant.

George F. Heege, of Clayton, for respondent.

BENNICK, C.

This is an action for damages for the destruction of certain of plaintiff's ornamental shade trees as the result of gas escaping from defendant's pipes. Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $1,700; and from the judgment rendered, defendant has duly appealed.

The negligence pleaded was that defendant failed to lay and maintain sound and leak proof pipes, and to inspect and repair the same, and to remedy and repair the defects therein, in consequence of which neglect gas, flowing through such pipes, was permitted to escape into the ground and into the air, and to come in contact with the roots, trunks, and branches of plaintiff's trees and shrubbery, causing the same to wither and die.

The answer was a general denial, coupled with a plea of contributory negligence, based upon the alleged failure of plaintiff to have notified defendant of the leakage of gas upon his premises.

If a reply was filed, it appears to have been in the conventional form, or at least the case was tried as though all matters pleaded had been fully put in issue.

Plaintiff's premises are located on the west side of Geyer Road, within the limits of the city of Kirkwood, but in a territory reserved for large, country homes, set in spacious grounds. The house itself sets back one hundred ten feet from the edge of the road, and in 1929, and prior thereto, when the present controversy arose, the front of plaintiff's lot was covered with some twenty-five oak trees, ranging from seven to fourteen inches in diameter. Eighteen of the trees died during 1929, causing a depreciation in the reasonable market value of plaintiff's property to the extent of $2,000; and the present action was instituted to recover therefor in the latter part of that year.

The chief claim of error advanced by defendant is the action of the court in having refused to give a peremptory instruction in its favor at the close of all the evidence. Defendant's contentions are twofold, the first being that there was no proof of actionable negligence on its part; and the second, that plaintiff, by his own confession, was guilty of negligence, precluding a recovery as a matter of law, in failing to have notified defendant that the gas was escaping until after the death of all the trees, for the destruction of which he now seeks to be recompensed.

The facts which bear upon the question of negligence disclose that defendant's main was located along the east side of Geyer Road, and that a service pipe led from the main into plaintiff's house. Such a situation had existed for at least four years. The testimony was limited by the court, upon defendant's objection, to what occurred only during the year 1929; and all the evidence as to leakage of gas at any time prior thereto was excluded.

It was shown by plaintiff's evidence that the smell of gas upon his premises was constantly noticeable throughout the spring and summer of 1929; that the odor was very strong and offensive, particularly under certain weather conditions; and that on several occasions, after it had been raining, and when pools of water were standing upon the ground, the gas could be seen bubbling out of the water, giving out a very intense odor. These points were located by one witness as having been along the west side of the road, adjacent to plaintiff's property, and some five feet from the service pipe that led thereto; and by another, as having been on the east side of the road, near the connection of the service pipe with the main, as well as at a point twentyfive feet north of the connection.

The evidence disclosed that the grass came out, and dried up; that the leaves on the trees turned brown, and fell off; that the trees themselves appeared to be in an impoverished condition; and that by September of 1929 eighteen of the trees had died. It was further shown that the location of the dead oaks had been in a region from twenty-nine to seventy-five feet from the main; that there were still live oaks standing on the premises, but not nearer than seventy-five feet to the main; that the grass had continued to grow outside of the affected area; and that the shrubbery close to the road had died, though some of the shrubs were still living in the region of the house. One witness testified that the trees died suddenly within a period of six weeks from the beginning of the trouble until all the leaves dropped off; that beetles might infest a tree, but would not do enough damage to it to kill it; that borers would not be looked for on hardwood, and at any rate could not kill a tree within the length of time in which the trees in question had died; and that no trees in that neighborhood had died within the preceding five or ten years, save for those in an area close to where the leaks occurred.

There was expert testimony that trees have two kinds of roots, large tap roots, which extend far down into the ground and hold the trees in place, and...