Smith v. Norman

• Decision Date: 21 August 1979
• Docket Number: No. 40377,40377
• Citation: 586 S.W.2d 84
• Parties: Wanda SMITH, Respondent, v. Charles NORMAN and Ruth Norman, Appellants.
• Court: Missouri Court of Appeals

Page 84

586 S.W.2d 84

Wanda SMITH, Respondent, v. Charles NORMAN and Ruth Norman, Appellants.

No. 40377.

Missouri Court of Appeals, Eastern District, Division Three.

Aug. 21, 1979.

Alan J. Baker, Leyhe, Meyer, Leyhe, Baker & Lobel, Clayton, for appellants.

Kathleen A. Creanza, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for respondent.

CLEMENS, Senior Judge.

Plaintiff-landlord sued her former tenant to recover damages for injuries done to her leased premises. The jury awarded plaintiff $3,500 and defendant has appealed the ensuing judgment. The core issue on appeal is the measure of plaintiff's damages the cost of repairs or the diminution of the building's value.

Defendant had occupied an eight-room apartment in plaintiff's six-unit building. The lease required him to surrender the apartment in good order and repair, ordinary wear excepted. Plaintiff's petition alleged and her evidence showed that when defendant vacated the apartment it was in disarray and plaintiff was compelled to furnish materials to have it renovated by several repairmen at a cost of $4,800. There was no evidence of overall before-and-after value, and defendant contends that without this plaintiff failed to make a submissible case.

Defendant's main point on appeal is that the court erred in admitting plaintiff's evidence as to the cost of repairs without also having shown just how much defendant's use diminished the building's overall value. No such evidentiary objection was raised at trial. However, the argument stressed in defendant's appellate brief points to the absence of opinion evidence to show overall diminution in value. In her brief plaintiff responds to this argument and we will consider that as the issue on this appeal.

Cases cited hereinafter show two parallel methods for measuring the amount of damages for injury to real property. In sum, where the injury is extensive or permanent the measure of damages is the reduction in the overall value of the property as a whole; in contrast, where the injury is slight when compared with the overall size and value of the realty and the injury can readily be remedied by repair, then the measure of damages is the expense of restoration. The latter method is not inconsistent with the former. This, because in the case of slight injury the cost of repair logically reflects the amount the property was reduced in value. See 25 C.J.S. Damages §§ 72, 84a and 85a; and 22 Am.Jur.2d, §§ 132 and 135.

To clarify the apparent inconsistencies in Missouri cases often dealing with extensive permanent injuries, sometimes with minor, temporary injuries, and frequently with both we cite the following cases to show there was no error here in submitting the case only on the basis of cost of restoration.

The early case of Graves v. K.C., P. & G.R.R. Co., 69 Mo.App. 574 (1897), concerned damages claimed both for flooding land and for destroying fences. The decision upholds two methods of measuring the damage, holding:

"For injury to the land itself, that is, the washing of the soil, the measure of damage is the difference in the value of the land before and after the flood by reason of this particular injury. As to the houses and fences their actual value is the measure of damages. Such value is measured by the sum which would, properly expended, restore the premises to their former condition."

Following Graves, the court in Wiggins v. St. Louis, M. & S.E. Ry. Co., 119 Mo.App. 492, 95 S.W. 311(1) (1906), also dealt with injuries both to fences and a permanent meadow. The court condemned a "reasonable value" damage instruction as to the permanent injury to the meadow, but upheld it as to the fence injury, holding "the actual value of the fence was the measure of the recovery therefor, and such value may be ascertained by the time and money properly expended to restore the fence to its former condition."

Next, Adam v. Chicago, B. & Q. Ry. Co., 122 S.W. 1136(1) (Mo.App.1909) was a case seeking damages for both temporary and permanent damages. The court noted that Missouri decisions were not harmonious but held: "Where the destruction of the thing includes but a temporary injury to the land, and the thing may be replaced in a comparatively brief period, the true measure of damages is the cost of replacing it and the rental value of the land until it is replaced; but where the destruction of the thing inflicts more than a temporary injury to the land, or the replacement would be impossible or tedious and uncertain both in cost and result, the criterion is the damage inflicted on the market value of the land." Adam was followed in DeSalme v. Union Electric Light & Power Co., 232 Mo.App. 245, 102 S.W.2d 779(2) (1937), where Judge Bennick distinguished between injuries to property which are temporary and can be repaired, and...