Schindler v. Standard Oil Co.

• Decision Date: 03 May 1921
• Docket Number: No. 16508.,16508.
• Citation: 207 Mo. App. 190,232 S.W. 735
• Parties: SCHINDLER v. STANDARD OIL CO. OF INDIANA.
• Court: Missouri Court of Appeals

232 S.W. 735

207 Mo. App. 190

SCHINDLER v. STANDARD OIL CO. OF INDIANA.

No. 16508.

St. Louis Court of Appeals. Missouri.

May 3, 1921.

Appeal from St. Louis Circuit Court; Thomas Bond, Judge.

Action by John Schindler against the Standard Oil Company of Indiana. Judgment for plaintiff, and defendant appeals. Reversed and remanded for a new trial.

Nagel & Kirby, of St. Louis, for appellant. Edward W. Foristel, of St. Louis, for respondent.

BIGGS, C.

After a verdict of a jury for plaintiff for 2,500, the trial court upon considering a motion for new trial and in arrest of judgment made an order overruling the motion for new trial, provided plaintiff would within 10 days remit $1,000; otherwise the motion would be sustained on the ground of excessive verdict. A remittitur of the amount having been entered, a judgment stood for $1,500, from which defendant has appealed.

Plaintiff's right of recovery is founded on the following allegation in his petition:

"Plaintiff states that the defendant has and maintains a certain water pipe in the cellar of its said building, and that in the month of June, 1916, and for a long time subsequent thereto, the defendant permitted and suffered the water to leak from said water pipe and run and percolate under the walls and into the cellar of the building of plaintiff, causing the walls of plaintiff's said building to become damp, cracked and buckled, and that the plastering on the walls of plaintiff's said building have become damp, cracked and weakened, and that the papering on said walls has been cracked and dampened, and that by reason thereof plaintiff has been damaged in the sum of $3,500, for which sum, together with his costs, he prays judgment against the defendant."

The parties owned adjoining properties in South St. Louis, and it was uncontradicted that the water pipe referred to was embedded in the ground under the concrete flooring in the cellar of defendant's building and led from there underground and connected with the city water supply in the street and was used to supply water for use on defendant's premises.

Plaintiff's main instruction given at his request followed the language of the petition and authorized a verdict for plaintiff on the finding of the facts set forth in the charge.

Defendant asserts that the petition is demurrable and that the instruction based thereon is erroneous, for the reason that there was no charge of negligence in the petition nor a requirement of a finding of negligence in the instruction or of facts which would constitute negligence. We think this contention well taken, and that absent a charge of neglect on the part of defendant in permitting the leakage in the pipe or a charge of a want of care in the original construction of the pipe or in discovering or repairing known defects followed by proof of such neglect, the defendant is not liable. McCord Rubber Co. v. St. Joseph Water Co., 181 Mo. 678, 81 S. W. 189; Murphy v. Gillum, 73 Mo. App. 487; Griffith v. Lewis, 17 Mo. App. 60-5; Rythlicki v. City of St. Louis, 115 Mo. 362, 22 S. W. 908; Terry v. City of New York, 21 N. Y. Super. Ct. 504; Cooley on Torts (2d Ed.) p. 676; Wood on Nuisances (3d Ed.) vol. 1, p. 168.

In the McCord Rubber Co. Case the Supreme Court held that one who brings water into his premises in pipes in the manner usual in cities, for the ordinary use of the occupants of the house, is not liable for injuries caused to an abutting owner by the bursting of the pipes and the flooding of his cellar, regardless of whether he is guilty of any negligence directly causing the accident. The plaintiff in that case contended that the defendants were liable regardless of whether they were guilty of any negligence, on the theory that one who brings into his premises anything that is liable to escape and liable to inflict injury on his neighbors if it should escape brings it there at his peril and is responsible for any injury that it may cause. The contention of the plaintiff in that case rested upon the authority of the old English case of Rylands v. Fletcher, L. R. 3 H. L. 330. After holding that the doctrine of the Rylands case has not been generally approved in America, the Supreme Court in distinguishing that case from the one under consideration says:

"There is a wide difference between a great volume of water collected in a reservoir in dangerous proximity to the premises of another; and water brought into a house through pipes in the manner usual in all cities, for the ordinary use of the occupants of the house. Whilst water so brought into a house cannot literally be said to have come in in the course of what might be called in the language above quoted of the Lord Chancellor `natural user' of the premises, yet it is brought in by the method universally in use in cities and is not to be treated as an unnatural gathering of a dangerous agent. The law applicable to the caging of ferocious animals is not applicable to water brought into a house by pipes in the usual manner."

In the case of Terry v. City of New York, supra, it is held that—

"One who suffers injury by a defect in water pipes [in a city] upon premises adjoining his own cannot recover damages therefor, without evidence of original defects in the pipes, or of want of care in discovering or repairing known defects."

In that case it is said:

"The use of the...