Robinson v. Moark-Nemo Consolidated Mining Company

• Court: Missouri Court of Appeals
• Writing for the Court: FARRINGTON, J. Per Curiam.
• Citation: Robinson v. Moark-Nemo Consolidated Mining Company, 163 S.W. 885, 178 Mo.App. 531 (Mo. App. 1914)
• Decision Date: 24 February 1914
• Parties: W. M. ROBINSON, Appellant, v. MOARK-NEMO CONSOLIDATED MINING COMPANY, A. E. BENDELARI AND FRED COOK, Respondents

163 S.W. 885

178 Mo.App. 531

W. M. ROBINSON, Appellant, v. MOARK-NEMO CONSOLIDATED MINING COMPANY, A. E. BENDELARI AND FRED COOK, Respondents

Court of Appeals of Missouri, Springfield

February 24, 1914

Appeal from Jasper County Circuit Court, Division No. Two.--Hon David E. Blair, Judge.

REVERSED AND REMANDED. CERTIFIED TO SUPREME COURT.

Reversed and remanded.

McReynolds & Halliburton, for appellant.

(1) The court erred in permitting defendants over plaintiff's objection to prove a contract of Reynolds with Moark-Nemo Company for sale of tailings off the ground, as it did not tend to prove or disprove the issues between plaintiff and defendants. (2) Defendants Cook and Bendelari being the managers of the Moark-Nemo Mining Company and controlling its mining operations, the trespass of said company could only be committed bye its servants, and employees, and all of them being under the control of Cook and Bendelari, they were vice-principals and participants in the trespass on plaintiff's land and liable for the trespass. McNeely v. Hunton, 30 Mo. 334; Walters v. Hamilton, 75 Mo.App. 257; Welch v. Stewart, 31 Mo.App. 376; Cooley on Torts, 533-534; Cooper v. Johnson, 81 Mo 483; Cannifax v. Chapman, 7 Mo. 175; Dyer v Tyrrell, 142 Mo.App. 467. (3) In trespass principals as well as agents, are joint trespassers and the principal is liable for the acts of the agent performed within the line of his duty, whether the particular act was or was not directly authorized. Humbur v. Scott, 5 Mo.App. 507; Dorvell v. Taylor, 2 Mo.App. 329; Murphy v. Wilson, 44 Mo. 313; Meade v. Railway Co., 68 Mo.App. 100. (4) In civil actions for damages for trespass the intent of the party committing the trespass is immaterial. Dyer v. Tyrrell, 142 Mo.App. 467. (5) The measure of damages in trespass on Real Estate is ordinarily the difference in the value of the land immediately before and after the completion of the injury unless the cost of restoring the property to its former condition is less than such difference in value. Ivie v. McMunnigal, 66 Mo.App. 437; Tegeler et al. v. Kansas City, et al., 95 Mo.App. 165. (6) The measure of damages for depositing refuse on the ground of another is the cost of removal, but no larger amount than the value of lot can be recovered. Barringer & Adams, Law of Mines & Mining in U. S. page 608.

McIndoe & Thurman, for respondent.

(1) Appellant insists that there should have been a finding against defendants Cook and Bendelari. An agent is not liable for a non-feasance of negligence. It is only where the agent has been guilty of active negligence, that is, by some act of misfeasance, that he can be made to answer to third parties. O'Niel v. Young, 58 Mo.App. 634; Harriman v. Stowe, 57 Mo. 98; Steinhouser v. Spraul, 114 Mo. 551. (2) Mere omission of duty is not sufficient. Buis v. Cook, 60 Mo. 393; Sanford v. Franklin County, 6 Mo.App. 42; O'Niel v. Young, 58 Mo. 634. (3) The appellate court cannot say that the trial court should have found otherwise. Questions of fact, when submitted to a court without a jury and found by the court have the same binding effect as the verdict of a jury. Tipton v. Christopher, 135 Mo.App. 623; Butts v. Gunby et al., 138 Mo.App. 28. (4) Where real estate is permanently injured by the wrongful act of another the measure of damages is the difference between the market value immediately before the injury occurred and the value after the injury is complete. St. Louis v. Bambrick, 149 Mo. 560; Martin v. Railroad, 47 Mo.App. 452; Authenreith v. Railroad, 36 Mo.App. 254; Tegler v. Kansas City, 95 Mo.App. 162. (5) In a question of damages it is proper for the defendant to show in mitigation that the property of the plaintiff is enhanced in value. Porter v. Railroad, 33 Mo. 128.

FARRINGTON, J. Sturgis, J., concurs. Robertson, P. J., dissents.

OPINION

FARRINGTON, J.

Plaintiff filed his petition in the circuit court of Jasper county alleging that the defendant, Moark-Nemo Consolidated Mining Company (hereinafter referred to as "the company") is a corporation and that he is the owner of a tract of land, comprising about two acres, adjoining land on which the company was engaged in mining and cleaning zinc and lead ore. The petition, after alleging the above facts, continues as follows:

"That the defendants A. E. Bendelari, Fred Cook and Charles Phelps are the agents, servants and employees in charge of said mine and directing and controlling the mining operations thereon; that said defendants Moark-Nemo Consolidated Mining Company and said Bendelari, Cook and Phelps have been mining upon the said land for a period of more than two years and that during all the said period the said defendants have wilfully and intentionally and against the protest of the plaintiff, run, dumped and placed all of the refuse from the said mine, upon the land of plaintiff, so that the whole of plaintiff's said land is covered up by said refuse and tailings, and that notwithstanding the fact that this plaintiff has forbidden the said defendants to further trespass upon his said land, they have intentionally and wilfully continued the said trespassing and are at this time engaged in such continuous trespassing upon the plaintiff's said land; that the tailings and refuse from the said mine placed upon the plaintiff's said land is piled up to the height of about one hundred feet, by reason of which the plaintiff is deprived entirely of the use of his said land and is prevented from mining the same; that the said trespass has so continued until all of plaintiff's use of the said land has been destroyed and the cost and expense to plaintiff of removing the said tailings amount to a large sum of money, to-wit: A sum in excess of five thousand dollars; that notwithstanding the plaintiff's said protest and the said continuous trespassing, defendants are now engaged in continuing their said piling of tailings upon the plaintiff's said land and are threatening to continue piling their refuse on the plaintiff's said land and will, unless restrained and enjoined by the order of the court, continue to deprive the plaintiff entirely of the use of his said land.

"Plaintiff says that his land aforesaid is mining land and is of great value for mining purposes, but that it has been entirely destroyed for such use and cannot be so used until said tailings are removed from the said land, for all of which trespass the plaintiff says that he is damaged in the sum of ten thousand dollars.

"Wherefore, the premises considered, plaintiff prays that an injunction issue from this court perpetually enjoining and restraining the said defendants from piling the tailings and refuse from the said mine on the plaintiff's ground, and from further trespassing upon the plaintiff's said ground, and that the court ascertain and determine the amount of the plaintiff's said damages and that the plaintiff have judgment for said damages in the sum of ten thousand dollars."

The answer of the defendant company was a general denial, and a plea by way of mitigation that the tailing had been abandoned by the company and had a value of five hundred dollars. The defendants Bendelari and Cook answered by a general denial. Plaintiff filed a reply to the plea of mitigation in the company's answer.

The court, sitting as a trier of the facts, found the issues in favor of the plaintiff and against the company and assessed damages in the sum of two hundred and fifty dollars, but found the issues in favor of defendants Bendelari and Cook and judgment was rendered in their favor.

In an opinion heretofore filed in this cause, we affirmed the entire action of the trial court. Appellant (the plaintiff) filed a motion for a rehearing, and after careful consideration we have concluded that the trial court committed error in its finding for the defendants Bendelari and Cook and in entering judgment in their favor. The original opinion is therefore withdrawn and this filed in its stead.

As to appellant's assignment of error to the effect that the court under the law and the evidence allowed an insufficient amount as damages, it is sufficient to say that both plaintiff and defendants were allowed great latitude in the introduction of testimony tending to throw some light on the question of the market value of the land before and after the tailings were placed there. Each also introduced evidence as to the cost of removing the tailings from plaintiff's land. After a careful reading of the record, we are unwilling to hold that the trial judge, as trier of the facts, committed error in the amount of the allowance made.

The company in its answer pleaded, and we think was properly allowed to show, that the tailings could be removed from plaintiff's land at little or no expense to him; in other words, that a contractor would agree to buy the tailings and remove them from the ground and pay something for them, and that as the company had abandoned the tailings, the plaintiff could have them removed without any substantial damage to the real estate.

The usual measure of damages in a case of this kind is the difference in the value of the land with and without the tailings thereon, but where the cost of removal is less than such difference, such cost of removal is the proper measure of damages.

The testimony showing the value of the tailings on the land would not be competent to justify the trespass, but on the question as to what it would cost to restore the land to its original condition by removing the tailings such evidence would certainly be proper. [Smith v. Kansas City, 128 Mo 23, 30 S.W. 314.] And aside from the question of removal, the following authorities uphold the rule that such evidence is admissible under proper pleadings to mitigate the actual...