Newkirk v. City of Tipton

• Decision Date: 04 December 1939
• Docket Number: No. 19561.,19561.
• Citation: 136 S.W.2d 147
• Parties: GEORGE T. NEWKIRK, RESPONDENT, v. CITY OF TIPTON, MISSOURI, APPELLANT.
• Court: Missouri Court of Appeals

136 S.W.2d 147

GEORGE T. NEWKIRK, RESPONDENT, v. CITY OF TIPTON, MISSOURI, APPELLANT.

No. 19561.

Kansas City Court of Appeals, Missouri.

December 4, 1939.

Appeal from the Circuit Court of Moniteau County. — Hon. Dimmitt Hoffman, Special Judge.

REVERSED AND REMANDED.

Frank J. Quigley and J.B. Gallagher for appellant.

(1) Appellant's demurrer should have been sustained at the close of respondent's evidence. Because the burden of proof was on respondent to make out a case as stated in his petition and in this he failed. Cluck v. Abe, 328 Mo. 81, 40 S.W. (2d) 558; Joplin Consolidated Mining Co. v. City of Joplin, 124 Mo. 129, 135. Appellant by reason of being a riparian owner has an interest in and rights to the use of the stream in question. City of Cape Girardeau v. Hunze, 314 Mo. 438. (2) Appellant's demurrer should have been sustained at the close of all the evidence. Because the appellant city had used this stream as natural drainage or sewer for outdoor toilets, cesspools, sinks, slaughterhouse offal, two public septic tanks and one private septic tank for many years and for more than five years prior to the institution of this suit, and respondent's cause of action, if any, accrued to him more than five years before the installation of the city's sewer disposal plant and said cause of action is barred by the five-year Statute of Limitations. Secs. 861, 862, R.S. 1929; Riggs v. City of Springfield, 126 S.W. (2d) 1144; King v. City of Rolla, 130 S.W. (2d) 697; City of Cape Girardeau v. Hunze, 314 Mo. 438. (3) The trial court erred in giving respondent's Instruction No. 2. Because it in effect told the jury that even though they found the acts of others polluted and contaminated the stream, that fact would not relieve the appellant from responsibility for damages and was for this reason in direct conflict with Instructions C, D, F, I and J given on behalf of the appellant. In the condemnation suit by the city, the defenses of natural drainage, as are interposed by the appellant city in this case, are available. (4) The trial court erred in giving respondent's Instruction No. 3. (a) Because it authorized or permitted a recovery by respondent for the mere discharge of the effluent from the disposal plant into the stream without first requiring the jury to find that said effluent was impure or harmful or caused damage to the stream by polluting or contaminating its water. Respondent's petition based his cause of action on the pollution or contamination of the stream by appellant, resulting in damage to his land, and he can recover only on that one ground. Instruction No. 3 gave the jury a "roving commission." Rucker v. Alton R. Co., 123 S.W. (2d) 24, 26; Krelitz v. Calcaterra, 33 S.W. (2d) 909, 911. (b) Instruction No. 3 purports to cover the whole case and directs the jury to find for plaintiff (respondent here) upon the finding of facts set forth in the instruction. Fourcade v. Kansas City, 107 S.W. (2d) 953, 955. (c) The instruction permits a recovery upon facts inconsistent with the evidence, in that it refers to and permits a recovery from the use of a septic tank, which was condemned by the expert testimony of appellants, while the evidence of appellant showed the installation of a disposal plant with a modern Imhoff tank as its major unit. (5) The trial court erred in giving respondent's Instruction No. 6. Because it in effect told the jury that opinions of experts were merely advisory and not binding on the jury, because a comment upon the testimony of appellant's expert witnesses. Zeikle v. St. Paul & K.C.S.L.R. Co., 71 S.W. (2d) 154, 156; Phares v. Century Electric Co., 82 S.W. (2d) 91, 94; Conduitt v. Trenton Gas & Electric Co., 31 S.W. (2d) 21, 26; Allen v. American Life & Accident Ins. Co., 83 S.W. (2d) 192, 194; Pedigo v. Roseberry, 102 S.W. (2d) 600, 604, 605. (6) The trial court erred in giving respondent's Instruction No. 8. Because it told the jury, "that the fact, if you so find the fact to be, that the stream or watercourse mentioned in evidence has been the natural drainage for the City of Tipton or a large part thereof, constitutes no defense in this action," which instruction is in direct conflict with Instructions C, D, F, I and J given for the defendant. City of Cape Girardeau v. Hunze, 314 Mo. 438. (7) The trial court erred in refusing to give appellant's Instructions E and K. Because it was the undisputed evidence that appellant had used the stream for the purpose of natural drainage and an outlet for the city's sewage for more than five years before the institution of this suit and the same is barred by the Statute of Limitations. Sec. 862, R.S. 1929; Riggs v. Springfield, supra; King v. City of Rolla, supra; City of Cape Girardeau v. Hunze, supra. (8) The trial court erred in admitting in evidence, over the objections of appellant, the testimony as to the value of respondent's land. State v. Lindley, 96 S.W. (2d) 1065, 1070; State v. Pope, 74 S.W. (2d) 265, 268. (9) The trial court erred in refusing to permit, expert witnesses for appellant, to answer hypothetical questions comparing the effluent from the disposal plant with the water in the stream prior to the construction of the sewer system. Pedigo v. Roseberry, 102 S.W. (2d) 600, l.c. 606; 3 C.J., p. 827; Fields v. Luck, 74 S.W. (2d) 35, 41, 340 Mo. 724; Bode v. Wells, 15 S.W. (2d) 335, 336; Atkinson v. American School of Osteopathy, 202 So. W. 452, 199 Mo. App. 251. (10) The trial court erred in rejecting the carbon copy of a letter — the only record of the state board of health — of the approval of the sewer system of appellant. Secs. 9033, 9035, R.S. 1929; Galli v. Wells, 209 Mo. App. 460; Jones on Evidence (Pocket), (2 Ed.), Chap. 7, sec. 209, l.c.p. 258; Iron v. Am. Ry. Express Co., 300 S.W. 283, 318 Mo. 318.

Embry & Embry for respondent.

(1) Appellant's demurrer at the close of the respondent's case was properly overruled. Carpenter v. City of Versailles (Mo. App.), 65 S.W. (2d) 957; Kent et ux. v. City of Trenton (Mo. App.), 48 S.W. (2d) 571, l.c. 575-576. A city cannot collect its sewage together and empty it into a stream to the injury of the lower proprietor without being responsible in damages. Mining Co. v. City of Joplin, 124 Mo. 129, l.c. 135-136; Carpenter v. City of Versailles, supra; Kent et ux. v. City of Trenton, supra; Smith v. City of Sedalia, 152 Mo. 283; Bollinger v. Roof Corp. (Mo. App.), 19 S.W. (2d) 544, l.c. 552; Herod v. Ry. Co. (Mo. App.), 299 S.W. 74, l.c. 78; Benson v. St. Louis (Mo.), 219 S.W. 575. The action was not barred by limitations and limitations has not run even yet. Kent et ux. v. City of Trenton (Mo. App.), 48 S.W. (2d) 571, l.c. 575-576; Riggs v. City of Springfield (Mo.), 126 S.W. (2d) 1144, l.c. 1153; King v. City of Rolla (Mo. App.), 130 S.W. (2d) 697. User by private citizens cannot establish a right in the appellant city to collect its sewage in mains and laterals and discharge it into the stream. Smith v. City of Sedalia, 152 Mo. 283, l.c. 298, 299; Hunze v. City of Cape Girardeau, 43 S.W. (2d) 882; Hunze v. City of Cape Girardeau (Mo. App.), 43 S.W. (2d) 882. (2) Appellant's demurrer at the close of all the evidence was properly overruled. (3) The court did not err in giving respondent's instruction No. 2. Bollinger v. Roof Co. (Mo. App.), 19 S.W. (2d) 544, l.c. 552; Benson v. City of St. Louis (Mo.), 219 S.W. 575; Herod v. Ry. Co. (Mo. App.), 299 S.W. 74, l.c. 78; Martinowski v. Hannibal, 35 Mo. App. 70, l.c. 77; Smith v. City of Sedalia, 152 Mo. 283; Mining Co. v. City of Joplin, 124 Mo. 129. Even if Instruction No. 2 were erroneous and Instructions C, D, F, I and J, were correct, there being no irreconcilable conflict, there would be no error in giving it. Oldham v. Oil Co. (Mo. App.), 15 S.W. (2d) 899, l.c. 900. (4) The court did not err in giving respondent's Instruction No. 3. Carpenter v. City of Versailles (Mo. App.), 65 S.W. (2d) 957; Kent et ux. v. City of Trenton (Mo. App.), 48 S.W. (2d) 571, l.c. 575-576; Smith v. City of Sedalia, 152 Mo. 283; Mining Co. v. City of Joplin, 124 Mo. 129; Seawell v. Ry. Co., 119 Mo. 222, l.c. 241, 242; Lewis v. Railroad Assn. (Mo. App.), 61 S.W. (2d) 234, l.c. 236; Oldham v. Oil Co. (Mo. App.), 15 S.W. (2d) 899, l.c. 900. All of the instructions must be read together, and considered as a whole. Tibbe v. Sayman (Mo. App.), 61 S.W. (2d) 376, l.c. 378; Leimkuhler v. Wessendorf (Mo.), 18 S.W. (2d) 445, l.c. 453; Schaper v. Sayman (Mo. App.), 61 S.W. (2d) 379, l.c. 381; Acker v. Koopman (Mo.), 50 S.W. (2d) 100, l.c. 102. No authorities being cited, a point is not reviewable. O'Howell v. Miller (Mo. App.), 11 S.W. (2d) 1068, l.c. 1070; Murphy v. Bank & Trust Co. (Mo. App.), 49 S.W. (2d) 668, l.c. 671; 1 Houts, Missouri Pleading and Practice, p. 608, sec. 347. (5) Instruction No. 6. Lumber Co. v. Niedermeyer, 187 Mo. App. 180, l.c. 188; Sterrett v. Met. Street Ry. Co., 225 Mo. 99, l.c. 105, 106; Renfrow v. Metals Co. (Mo. App.), 5 S.W. (2d) 665, l.c. 667; Wolpers v. Insurance Co. (Mo. App.), 61 S.W. (2d) 224, l.c. 227; Schweig v. Wells (Mo. App.), 26 S.W. (2d) 851, l.c. 853; Essenpreis v. Store Co. (Mo. App.), 37 S.W. (2d) 459, l.c. 462. Appellant has abandoned the objections raised by its motion for new trial in the trial court and seeks to attack on grounds not specified in the motion for new trial. Courtney's Estate v. Lanzar's Estate (Mo. App.), 296 S.W. 269, l.c. 271; Morton v. Ry. Co. (Mo.), 20 S.W. (2d) 34, l.c. 45; Oliver v. Hirsch (Mo. App.), 296 S.W. 840, l.c. 844; Compton v. Const. Co. (Mo.), 287 S.W. 474, l.c. 483; Raleigh v. Raleigh (Mo. App.), 5 S.W. (2d) 689, l.c. 695; Simpson Adv. Service Co. v. Manufacturers & Merchants Assn. (Mo.), 51 S.W. (2d) 1019, l.c. 1021; Kelvinator St. Louis v. Schader (Mo. App.), 39 S.W. (2d) 385, l.c. 388; Scanlon v. Kansas City (Mo.), 28 S.W. (2d) 84, l.c. 95. (6) The court did not err in giving respondent's Instruction No. 8. Mining Co. v. City of Joplin, 124 Mo. 129; Smith v. City of...