Ward v. Andrews

• Decision Date: 31 January 1877
• Citation: 3 Mo.App. 275
• Parties: JOHN M. WARD, Plaintiff in Error, v. JAMES ANDREWS et al., Defendants in Error.
• Court: Missouri Court of Appeals

3 Mo.App. 275

JOHN M. WARD, Plaintiff in Error,

v.JAMES ANDREWS et al., Defendants in Error.

St. Louis Court of Appeals, Missouri.

Jan. 31, 1877.

In an action for damages on account of an excavation, where a want of care and skill is charged and denied, it must be proved. Negligence cannot be inferred from the facts of the excavation and the injury, where the injury might have happened without the excavation.

ERROR to St. Louis Circuit Court.

Affirmed.

A. R. Taylor, for plaintiff in error.

R. E. Rombauer and John R. Warfield, for defendant in error Andrews, cited: 1 Chitty's Pl. 403; Hess v. Supton, 7 Ohio, 216; Pye v. Rutter, 7 Mo. 548; Common Pleas v. Sargent, Wright (O.), 482; Simon v. Stevenson, 36 Ill. 49; Beach v. Bay State Co., 30 Barb. 433; Add. on Torts, Dudley & Bailey's ed. 22, 23, notes; Boland v. Missouri R. R. Co., 36 Mo. 484; Biddle v. Boyce, 13 Mo. 532; Sturdevant v. Rehare, 60 Mo. 152; Callahan v. Warne, 40 Mo. 131; Charles v. Rankin, 22 Mo. 566; Busby v. Holtham, 46 Mo. 161.

HAYDEN, J., delivered the opinion of the court.

This was an action grounded on the alleged negligence of the defendants in removing the dirt and natural support of a house, a part of which was held by the plaintiff under lease; that the house gave way and sank, the plaintiff's rooms became untenantable, and his furniture in the rooms damaged. The plaintiff was nonsuited, and whether he was properly nonsuited depends on the correspondence between the allegations of his petition and the evidence adduced to support them. The petition alleges that the plaintiff was carrying on the business of renting the rooms; that the defendants, who were engaged in making a tunnel, made excavations near the premises, and carelessly and negligently removed the dirt and natural support of the house, thereby causing its walls to crack, give way, and sink, his rooms to become untenantable, etc.; that the defendants also blocked up the entrances; that by their wrongful acts the walls were opened, rain and dirt got in upon the furniture, etc. The defendants filed separate answers, defendant Andrews alleging that he, as employee of the other defendant, was engaged in making the tunnel; that the other defendant, the tunnel company, by authority of its charter and under license from the city of St. Louis, was constructing the tunnel, and as its agent this defendant lawfully made an excavation near plaintiff's premises. The tunnel company pleaded that Andrews had a contract with it for the construction of the tunnel, and set up its authority as above for the making of a railroad which it had along Eighth Street, in front of the premises. Both defendants denied any negligence, and denied, in substance, the other allegations of the petition. A reply was filed, denying the affirmative allegations of the answers.

It will be seen that the petition neither pleads facts to show, nor by any averment charges, that the acts of the defendants in excavating and in removing the soil were, in themselves, wrongful acts. On the contrary, as a pleading must be construed against the pleader, the petition admits that the acts, as such, were lawful; otherwise, it is to be presumed the pleader would have charged facts showing that the acts were unlawful. The gravamen of the complaint is that these lawful acts were negligently done; that owing to the careless or unskillful manner in which the defendants or their employees performed these acts, and not owing to other causes, the plaintiff's property was injured. Hence, the point of the appellant that the court below erred in presuming a license is not well taken. The fact that the answers plead a license cannot avail to amend the plaintiff's petition.

As the petition thus, in effect, charges a want of care or skill on the part of the defendants...