Thompson v. Granite Bituminous Paving Co.
| Decision Date | 07 May 1918 |
| Citation | 203 S.W. 496,199 Mo.App. 356 |
| Parties | WILLIAM B. THOMPSON, Respondent, v. GRANITE BITUMINOUS PAVING CO., and WEBBKUNZE CONSTRUCTION CO., Appellants |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Kent K. Koerner, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
Kinealy & Kinealy and Sturdevant & Sturdevant for appellants.
(1) The action of the court in sustaining plaintiff's motion for new trial for alleged error in instruction No. 5 was equivalent to overruling the motion as to all other grounds. Bradley v. Reppell, 133 Mo. 545; Ittner v Hughes, 133 Mo. 679. (2) Where, as here, the plaintiff was not entitled to recover at all, the order granting a new trial should be set aside and the verdict and judgment in favor of the defendants reinstated. Grain Co. v Railroad, 177 Mo.App. 194. (3) Plaintiff not being in possession could not sue for trespass. Lindenbower v Bentley, 86 Mo. 515; Zeitinger v. Hackworth, 117 Mo. 505. (4) And he was not entitled to recover for injury to the inheritance because he did not show any depreciation in value due to defendants' acts, even assuming such acts to have been wrongful. Such depreciation in value is the measure of damages in such cases. St. Louis Trust Co. v. Bambrick, 149 Mo. 560; Bailey v. Siegel G. F. Co., 54 Mo.App. 50; Robinson v. Mining Co., 178 Mo.App. 531; Coffman v. Railroad, 183 Mo.App. 622. (5) Instruction No. 5 was correct because plaintiff was bound by the acts of his tenant Bailey as to all matters in which said Bailey, with the knowledge of plaintiff, purported to act with authority from plaintiff. 2 C. J. 435, tit. Agency; Somerville v. Railroad, 62 Mo. 391; Johnson v. Hurley, 115 Mo.App. 513. (6) And because plaintiff under such circumstances was estopped from denying the authority of said Bailey. 2 C. J. 461, tit. Agency.
David Goldsmith and Ford W. Thompson for respondent.
(1) The court erred in permitting the witness Keary to testify concerning the dumping of earth by various contractors without requiring any evidence that this was known to the plaintiff. (2) The court erred in permitting the witness David E. Murphy to testify concerning the dumping of earth by himself without requiring any evidence that this was known to the plaintiff. (3) The court erred in giving, at the instance of the appellants, the instruction hereinbefore set out.
The petition herein alleges that plaintiff is, and at all times mentioned in the petition was, the owner of a certain tract of ground in the city of St. Louis, consisting of certain lots, with the exception of "that portion of said lots which is contained in a certain public street known as Northland avenue," which now extends through the original tract, and excepting two public alleys extending through the same; "that defendants, through their agents and servants, between April 25, 1914, and August 6, 1914, without the knowledge or consent of plaintiff, caused to be dumped and laid upon said land a large amount, to-wit, Sixty-three and seventy-one hundredths (63.71) cubic yards of earth, taken and removed from said Northland avenue; that the reasonable value of the use of said land for dumping of said earth is the sum of three thousand dollars ($ 3000); that no part of said sum has been paid by said defendants, although demanded." Judgment is prayed for $ 3000.
The answer admits that some earth was placed by defendants upon the land described in the petition, but avers "that the same was done with the permission and consent of plaintiff under verbal agreement between these defendants and plaintiff through F. H. Bailey, the tenant and occupant thereof at the time, who was the agent of plaintiff and duly authorized to make said agreement." The other allegations of the petition are denied.
The trial, before the court and a jury, resulted in a verdict for defendants. Thereafter the court sustained plaintiff's motion for a new trial on the ground that error had been committed at the trial in the giving of an instruction for defendants, defendants' instruction No. 5. From the order granting the new trial the defendants prosecute the appeal before us.
The evidence shows that in 1914, and for many years prior thereto, plaintiff owned the tract of land mentioned in the petition, lying on the north side of Spalding avenue between Kings highway and Union boulevards, in the city of St. Louis, containing about ten or twelve acres of land. In 1910 plaintiff rented the property to one Bailey, as a tenant from month to month, who remained such tenant and was in possession thereof during the year 1914. Bailey occupied an eight room house situated upon the land, and according to plaintiff's testimony, "had possession of all the land except what was taken for streets and alleys." It appears that in 1911 there was a large depression upon this land wherein water collected forming a pond; that plaintiff desired to have this depression filled, and that the Board of Health of the city of St. Louis took steps to require this to be done. In that year plaintiff gave a letter to one Holmes authorizing him to enter upon the premises and dump earth into the depression, and later made an arrangement with the Union Electric Light & Power Company to dump earth at this place. According to testimony for plaintiff this depression was entirely filled by some time in 1913. Plaintiff testified that he never at any time gave Bailey a permit to allow dumping upon the land; but it appears that Bailey did at different times allow contractors to use the land as a dumping place. And in 1914 the defendant Webb-Kunze Construction Co. being then engaged--under contract with its co-defendant--in excavation work for the construction of Northland avenue, which had been opened through plaintiff's tract of land, entered into an oral agreement with Bailey whereby, in consideration of the sum of $ 125 paid to him, Bailey undertook to authorize said defendant to dump upon plaintiff's land the dirt excavated in making this street. And under this agreement said defendant dumped earth over practically all of plaintiff's land. Plaintiff's evidence tends to show that the layer of earth placed upon the land varied from about one foot to something more that two feet in thickness. According to defendants' evidence there was then a depression upon the land, which was first filled by the dirt dumped by the defendant construction company. And it is said that the dumping was done under the supervision of Bailey, with the view of filling up the lower places; and that he required that the surface be "leveled up."
Plaintiff adduced evidence tending to show the reasonable value of the use of the land for dumping purposes. There is no evidence, however, tending to show any injury to the reversion or freehold by the placing of this earth upon plaintiff's land.
At the close of plaintiff's case and again at the close of the entire case, defendants offered a peremptory instruction in the nature of a demurrer to the evidence which was refused. In the view which we take of the case it is unnecessary to set out defendants' instruction No. 5, or any of the other instructions given.
Learned counsel for appellant, while contending that if the case was one for the jury it was not error to give defendants' instruction No. 5, argue with much force and earnestness that in no event was plaintiff entitled to recover under the petition and evidence in this case; that the demurrer to the evidence should therefore have been sustained; and that consequently, regardless of all other considerations, the court erred in disturbing the verdict obtained by defendants at the hands of the jury.
The question as to plaintiff's right to recover at all was of course, raised by the demurrers to the evidence interposed below, and is consequently here presented by this record. And it is undeniably true that if plaintiff, under his petition and the evidence adduced, was not entitled to go to the jury, then the order of the trial court setting aside the verdict for defendants, upon the theory that error had been committed in the course of the trial, cannot be permitted...
To continue reading
Request your trial