Roth v. City of St. Joseph

• Decision Date: 01 March 1914
• Docket Number: No. 10849.,10849.
• Citation: 180 Mo. App. 381,167 S.W. 1155
• Parties: ROTH v. CITY OF ST. JOSEPH.
• Court: Missouri Court of Appeals

167 S.W. 1155

180 Mo. A. 381

ROTH v. CITY OF ST. JOSEPH.

No. 10849.

Kansas City Court of Appeals. Missouri.

March Term, 1914.

Rehearing Denied June 1, 1914.

1. APPEAL AND ERROR (§ 1099) — LAW OF THE CASE.

A decision of the court on appeal that a demurrer to the petition was properly overruled is the law of the case on a subsequent appeal as to every objection to the petition that could have been raised under the demurrer.

2. NUISANCE (§ 48) — LIABILITY — ACTIONS — PETITION.

A petition in an action for a nuisance, prosecuted after plaintiff's death by her administrator, which alleges that the nuisance was injurious to plaintiff's health and decreased the value of her property as a home, shows an injury to plaintiff's health merely, and not to her life, and, even were it necessary to further allege that the injury to health did not result in death to state a cause of action as to that item of damages, defendant must demur to that part of the petition claiming damages for injury to health, or put in issue the fact that the damages for injury to health resulting in death were not recoverable, because not surviving to the administrator.

3. PLEADING (§ 406) — DEFECTS IN PETITION — THEORY OF CASE.

Where, in an action for a nuisance, prosecuted after plaintiff's death by her administrator, both parties tried the case on the theory that plaintiff's death did not result from the nuisance, the defect in that the petition did not show that her death did not result therefrom was cured.

4. APPEAL AND ERROR (§ 193) — QUESTIONS REVIEWABLE — SUFFICIENCY OF PETITION.

The sufficiency of a petition which does not wholly fail to state any cause of action cannot be raised for the first time on appeal.

5. MUNICIPAL CORPORATIONS (§ 845) — NUISANCE — ACTIONS — PARTIES.

In an action against a city for permitting the existence of a surface water nuisance, created by a railroad company building an embankment in the street and putting a pipe therein insufficient to drain the water through the embankment, the railroad company is not a necessary party, under Rev. St. 1909, §§ 8862, 9110, providing that in actions against any city of the first or second class for damages from the wrongful act of a corporation the corporation shall be joined as a party.

6. APPEAL AND ERROR (§ 1170) — HARMLESS ERROR — ERRORS IN INSTRUCTIONS.

An instruction in an action for a surface water nuisance damaging property during a specified time, which permits a recovery for the loss sustained in the reduction of the rental value of the property "during the time mentioned," but not specifically stating that damages cannot be claimed after the filing of the original petition, and a further instruction expressly declaring that such subsequent damages are not recoverable, are not conflicting, nor misleading, and the court, permitted by Rev. St. 1909, § 2082, to reverse only for error materially affecting the merits of the case, cannot reverse the judgment for the giving of the first instruction.

7. NEW TRIAL (§ 143) — IMPEACHMENT OF VERDICT — AFFIDAVITS OF JURORS.

Affidavits of jurors will not be admitted to impeach their verdict for misconduct.

Appeal from Circuit Court, Buchanan County; Wm. D. Rusk, Judge.

Action by Mrs. Anna Guczman against the City of St. Joseph, prosecuted on her death by John H. Roth, her administrator. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 164 Mo. App. 26, 147 S. W. 490.

Frank B. Fulkerson, L. E. Thompson, and Herman Hess, all of St. Joseph, for appellant. Peter J. Carolus, Samuel Wilcox, and Perry A. Brubaker, all of St. Joseph, for respondent.

TRIMBLE, J.

In this action damages are sought against the city of St. Joseph on account of a nuisance adjacent to Mrs. Anna Guczman's residence. The alleged nuisance consisted of a stagnant and miasmatic pool which was injurious to her health, and also to the desirability and rental value of her property as a home during the time sued for. The case was here once before on an appeal by the defendant from an order of the trial court granting a new trial to plaintiff, defendant contending, at that time, that plaintiff had no case, and was not entitled to go to the jury. Roth, Adm'r, v. City of St. Joseph, 164 Mo. App. 26, 147 S. W. 490. It is true the petition contained allegations stating that the city created the nuisance, but the cause of action alleged therein, and which is maintainable thereunder, was for permitting the nuisance to remain after notice to abate.

The defendant, upon the theory that the case was based on negligent acts of the city in creating the pool, filed an answer in which it set up that the pool was created by a railroad company which built an embankment in the street of the city and put a pipe therein which did not drain the water through the embankment. Defendant further claimed that the suit was not maintainable until the railroad company was made a party to the suit pursuant to ...