Schade v. Gehner
| Decision Date | 10 March 1896 |
| Citation | 34 S.W. 576,133 Mo. 252 |
| Parties | Schade, Appellant, v. Gehner |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.
Affirmed.
F. M Estes and Willis H. Clark for appellant.
(1) The court erred in sustaining defendant's demurrer to the evidence for plaintiff. Clark v. Marshall, 34 Mo 429; Chase v. Heany, 70 Ill. 268; Dickel v. Abstract Co., 89 Tenn. 431; Bank v. O'Connell, 23 Mo.App. 165; Page v. Frutch, 8 Chi. Leg. News, 385; Siewers v. Com., 6 W. N. C. 17; Burrowes v. Lock, 10 Ves. 470; Slim v. Croucher, 2 Giffard, 37; Donaldson v. Haldane, 7 C. & F. 762; Morton v. Hatch, 54 Mo. 408; State to use v. Thornton, 56 Mo. 525. (2) The court erred in excluding evidence offered on behalf of plaintiff. Dickel v. Abstract Co., 89 Tenn. 431; Siewers v. Com., 6 W. N. C. 17; Donaldson v. Haldane, 7 C. & F. 762.
Kehr & Tittmann for respondent.
(1) If one, holding himself out as an investigator of titles, is employed to investigate a title and accepts the employment, he undertakes, by implication of law, that he is possessed of ordinary skill to do the work, and will exercise ordinary care and diligence in doing it, and if he fails to exercise either and in consequence thereof, loss results to the employer, the investigator is liable to him for such loss. Wharton on Negligence, secs. 749 and 750; Rankin v. Schaeffer, 4 Mo.App. 108; Dodd v. Williams, 3 Mo.App. 278; Gilman v. Hovey, 26 Mo. 280. (2) But he is liable only to his immediate employer, and not to the latter's assigns or devisees, or any third person between whom and himself there is no privity of contract. Shearman and Redfield on Negligence [4 Ed.], sec. 574; Bank v. Ward, 100 U.S. 195; Dundee Co. v. Hughes, 10 Sawyer, 144; Zweigardt v. Birdseye, 57 Mo.App. 462; Gordon v. Livingston, 12 Mo.App. 267; Kahl v. Love, 37 N. J. L. 5; Warvelle on Abstracts, p. 8. (3) The petition upon its face shows that the plaintiff has no cause of action against the defendant, even if all the facts stated in it were true. She sues upon a cause of action which can accrue only to George Schade, and which she claims, not as his executrix, but as his devisee. The right of action, if any, goes to the administrator or executor, and not to the devisee. 1 R. S. 1889, sec. 96; Green v. Tittmann, 124 Mo. 372; Smith v. Denny, 37 Mo. 20; State to use v. Fulton, 35 Mo. 323; Hannenkamp's Administrator v. Borgmier, 32 Mo. 569; Huling v. Chester, 19 Mo.App. 607. (4) The statute begins to run from the date at which the breach of duty occurs, and not from the time at which the consequential damage accrues. Rankin v. Schaeffer, 4 Mo.App. 108; 1 Wood on Limitations, sec. 179, p. 455; Moore v. Juvenal, 92 Pa. St. 484-490; Lilly v. Boyd, 72 Ga. 83; Wilcox v. Plummer's Ex'r, 4 Peters (29 U.S.), 172; Bank v. Childs, 6 Cow. 238; Howell v. Young, 5 B. and C. 259.
OPINION
This is an action by the plaintiff as the widow and sole devisee and legatee of George Schade, deceased, to recover damages of the defendant, an examiner of titles to real estate in the city of St. Louis, for alleged negligence in the discharge of his duty to examine and correctly report the condition of the title to a certain lot in said city which he was employed to do by the said Schade. At the close of the plaintiff's evidence the court sustained a demurrer thereto, and plaintiff took a nonsuit with leave, which the court refused to set aside, and the plaintiff appeals.
The evidence tended to prove that in the year 1881 there was pending in the circuit court of the city of St. Louis a suit wherein Hannah M. Jenkins et al. were plaintiffs and Edward G. Lilly et al. were defendants, being a proceeding for the partition of a lot in city block 253, fronting fifty-one feet on Franklin avenue, which on the tenth day of October, 1881, culminated in a decree and order of sale of said premises. The sale took place on the ninth of November, 1881, and George Schade became the purchaser at the price of $ 21,600. That for many years prior thereto the said Schade had been in possession of the premises, and had erected the buildings thereon, under a lease which had not then expired. That he was desirous of purchasing the reversionary title in fee which he understood was to be sold at this partition sale, and for this purpose engaged the assistance of the defendant Gehner. What the terms of his employment were does not appear by the evidence. It does not appear that the defendant undertook to furnish or did furnish Schade any abstract of the title or any statement in writing of its condition. The only abstract or written certificate of title that appears in the evidence, was one prepared by Webster & Davis, made for the parties in interest, and furnished to the purchasers at the sale.
The evidence does tend to prove, however, that the defendant did undertake to assist Schade in consummating his purchase of the property; advised him before the bidding commenced that everything was all right, and that he could go as high as $ 18,000 for the property if necessary -- and afterward, before the purchase money was paid, and when Schade was about to execute a deed of trust to raise it, and after defendant's attention had been called to some dubiety in the Webster & Davis abstract, he again assured Schade that everything was all right, that nothing would ever come back on him; that he had run the title back as far as O'Fallon. That afterward the defendant presented the following account for services rendered in this behalf:
Notary Public. 521 Pine Street. -- Dr.
This account was thereafter duly paid by the said Schade, who remained in the peaceable and undisturbed possession of the premises under his purchase until his death in February, 1885.
Afterward, on the twenty-first of November, 1885, a suit in ejectment for the recovery of the premises was instituted in the circuit court of the city of St. Louis by one Chas. E. Rodney against Morris Landau, tenant of the plaintiff, who defended the suit for her tenant, and who testifies that after it had been instituted she went to Mr. Gehner "and he said it was all right, that we did not lose the property yet, anybody can sue, but we did not lose our property yet." Dr. Schade, a son of the plaintiff, also testified that the defendant said to him in regard to this suit:
The ejectment suit thereafter duly progressed to judgment in the circuit court in favor of Mrs. Schade and her tenant, but upon appeal to this court the judgment was reversed, at the April term thereof, 1891 (Rodney v. Landau, 104 Mo. 251, 15 S.W. 962), this court holding that Schade, by his purchase at the partition sale and deed in pursuance thereof, only acquired the undivided one fourth of the premises in fee simple, the title to the other undivided three fourths being in the said Rodney, who was not a party to the partition proceeding, and ejectment followed in accordance with such judgment.
Afterward on the nineteenth day of May, 1892, Mrs. Schade instituted this suit. The answer was a general denial, plea of the statute of limitations, and a special plea that need not be noticed.
It is manifest from the foregoing statement that there was ample evidence tending to prove that the defendant held himself out to Schade as an investigator of titles, and that he was employed to investigate the title in question; that he reported the same to be good, and that Schade acted upon the faith of his opinion that it was good, and that it has since turned out that the title was defective as to three fourths of the property in question. The only negligence the evidence tends to prove is that Gehner formed an incorrect opinion in holding that the whole of the fee simple title to the premises was vested in the parties to the partition suit, an error which he seems to have shared with other respectable authority.
Skill as well as care was required in the performance of his undertaking, and if he failed to exercise either, and damage resulted therefrom, he became responsible therefor. He did not, however, by such undertaking become a guarantor of the title, and could be held only for want of the exercise of a reasonable degree of skill and care; and, if it were necessary, it might become an interesting inquiry whether the mistaken judgment of the defendant as to the title in this instance was of itself sufficient evidence of such want of skill and care in his profession as to make him liable, -- but for the purposes of this case such inquiry is unnecessary, for the reason that there are other and insuperable obstacles to plaintiff's recovery, whatever might be the result of such inquiry.
Conceding then, the defendant's negligence, and that a right of action accrued therefor; when and to whom did such right of action accrue? That it accrued to George Schade with whom the contract of employment was made, is matter of course. That a right of action could not accrue to anyone else...
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