Whitsett v. City of St. Clair

• Decision Date: 02 April 1935
• Docket Number: No. 23345.,23345.
• Citation: 80 S.W.2d 696
• Parties: WHITSETT v. CITY OF ST. CLAIR.
• Court: Missouri Court of Appeals

80 S.W.2d 696

WHITSETT v. CITY OF ST. CLAIR.

No. 23345.

St. Louis Court of Appeals. Missouri.

April 2, 1935.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be published in State Reports."

Suit by J. C. Whitsett against the City of St. Clair, a municipal corporation, in which defendant filed a counterclaim. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

Frank W. Jenny, of Union, and Jesse H. Schaper and Randolph H. Schaper, both of Washington, Mo., for appellant.

Otto & Boyer, of Washington, Mo., for respondent.

McCULLEN, Judge.

This suit was brought by respondent, plaintiff, against appellant, city of St. Clair, and the mayor and four members of the city council of said city, to recover $3,000 actual damages and $3,000 punitive damages for cutting off, and refusing to turn on, the water supply of plaintiff's restaurant in said city.

During the trial before the court and a jury, at the conclusion of all the evidence, plaintiff voluntarily dismissed as to all the individual defendants, and the case went to the jury as to the city of St. Clair only. There was a verdict for plaintiff and against said city in the sum of $325 compensatory damages and in the further sum of $75 punitive damages. From the judgment on said verdict the defendant city appeals.

Plaintiff's petition alleged that the city of St. Clair was and is a municipal corporation organized under the laws of Missouri as a city of the fourth class; that defendant Peter Rauscher was the mayor, and that defendants Harry Kloppenberg, Charles Bardot, J. C. Young, and Fred Otten were members of the city council of said city; that the city, through its said officers, operated and maintained a municipal waterworks plant and distribution system to furnish water to the inhabitants thereof, for public and private uses and for pecuniary profit.

The petition alleged that plaintiff operated a restaurant business in said city; that he was a resident, citizen, and taxpayer thereof, and had paid and was willing to pay the usual charge for furnishing water for his restaurant; but that defendants, in violation of their agreement with him and in violation of their duties to him, without just cause or excuse, willfully and maliciously, and with intent to injure him and his business, turned off the water which had been supplied to plaintiff's restaurant by said city, whereby defendants injured the earning capacity of said restaurant business and rendered it worthless.

Plaintiff further alleged that on the ____ day of January, 1934, he served written notice upon the defendant city of St. Clair and on the other defendants requesting them to turn on the water supply for his restaurant, but that they refused to do so; that prior to the ____ day of January, 1934, said restaurant business had been a profitable one, but because of defendants' acts in cutting off the water supply, and in refusing to turn it on, plaintiff was forced to cease operating the restaurant and was forced to sell it at a great loss; that said acts of defendants were done wrongfully, intentionally, and for the purpose of injuring and destroying the value of plaintiff's restaurant business and driving customers away from it to some other place, and for the purpose of forcing plaintiff to sell and dispose of said business, and for no other purpose. Plaintiff prayed $3,000 actual damages and $3,000 punitive damages.

Defendants filed a joint answer admitting that the city of St. Clair is a municipal corporation of the fourth class and that the individual defendants named were members of its board of aldermen; admitted that the city owned and maintained a municipal waterworks plant to furnish water to the inhabitants of the city and vicinity, but denied that plaintiff complied with the rules and regulations governing the operation of the waterworks system; denied that plaintiff offered to pay the usual charges for the water supply furnished by the city for plaintiff's restaurant; denied that defendants, without just cause and excuse, willfully and maliciously and with intent to injure plaintiff and his business, turned off his water supply; and denied all other allegations in plaintiff's petition not admitted.

The answer of defendants pleaded an ordinance of the city of St. Clair relating to its water system and providing rules and regulations for the operation and management thereof, and alleged that said ordinance contained, among other provisions, rules numbered 1, 2, 3, 4, 10, 11, 12, and 13, which were set forth in defendants' answer.

The answer further alleged that the defendant city furnished plaintiff all necessary water from the 1st day of August, 1933, until the 5th day of January, 1934, and complied with the rules, regulations, and provisions of the aforesaid ordinance, but that plaintiff refused to pay the defendant city the lawful charges for the water so furnished by it to plaintiff in his restaurant business, and that defendant city, by authority of said ordinance and an order of its board of aldermen, after monthly demands and notice given to plaintiff, disconnected the water line of plaintiff and cut off the supply of water to his restaurant.

For further defense and for a counterclaim, the answer alleged that plaintiff was indebted to the defendant city in the sum of $17.76 for water furnished by the city to plaintiff at his restaurant between August 1, 1933, and January 1, 1934, and prayed judgment against plaintiff for said sum.

The defendant city complains that the court committed error in admitting the testimony of a number of witnesses with respect to the manner in which it conducted its business of supplying water to various other individuals, businesses, and premises in the city and the charges it made for such service. Thirteen instances of the testimony complained of are cited in the defendant city's brief, after which it states that the testimony so admitted "was illegal, irrelevant and incompetent in that it did not tend to prove any issues under the pleadings in this case and the effect was to create bias and prejudice in the minds of the jurors against the defendant."

The point is not argued or further developed in the brief, and no authorities whatsoever are cited to support the contention thus made. We are not advised in the brief of the defendant city as to the specific reason or reasons why it considers such testimony "illegal, irrelevant and incompetent," except that its effect was to bias and prejudice the minds of the jurors against defendant. This is not sufficient to raise the question for our consideration. The reason assigned for the inadmissibility of the evidence amounts really to no reason at all, for, as has been well said: "All the evidence which plaintiff introduced to make out a case was necessarily prejudicial. If such evidence was excluded because it had a prejudicial tendency against the defendant (that is, if it tended to influence the jury to render a verdict in favor of the plaintiff), then plaintiff could never make out a case." Ingram v. Prairie Block Coal Co., 319 Mo. 644, 656, 5 S.W.(2d) 413, 418.

We have nevertheless examined the testimony complained of and are of the opinion that it was admissible for the purpose of showing bad faith on the part of the defendants in the dispute with plaintiff which led to their shutting off plaintiff's water supply. There was a real dispute between the parties as to the condition of the meter and the correctness of the charges for water made against plaintiff, and the testimony was admissible to prove plaintiff's allegation that the defendants, without just cause, willfully and maliciously cut off his water supply with the intention of injuring his restaurant business. It tended to show discrimination against plaintiff in the charges for water made against him as compared with other consumers of water in the city. We, therefore, hold against defendant city on this point.

Defendant contends that the court erred in submitting the case to the jury, and argues that there was no substantial evidence to support the jury's verdict, and that the judgment should, therefore, be set aside on appeal.

The evidence shows that plaintiff claimed that the city's bill for supplying water to his restaurant for the month of August, 1933, was excessive, and plaintiff refused to pay it on that ground. According to plaintiff's testimony, the largest amount of water ever used by his restaurant in a day was 100 gallons, or 3,000 gallons a month, whereas the city's bill for water supplied to his restaurant for August, 1933, was for an amount between $5 and $6 for 13,000 gallons. Plaintiff refused to pay the bill and told the city marshal who came to collect that he would not pay it as it was too high; that he had not used that much water. Plaintiff testified that he talked to the mayor and one of the aldermen and asked them why he was being charged $5.37 for a month's water supply while the charge made by the city against the Lindbergh Café, not owned by plaintiff, was only $1.50 for that month; that they told him the meter in the other cafe was out of order; that he told them he had tested his meter and "it is out of order too"; that they said to him, "You pay us $1.00 and we will test it"; that he told them that they had tested other people's meters for nothing and he would not pay the dollar.

Plaintiff further testified that he and his wife tested the meter in his restaurant, and that when they took a quart of water out of a faucet the meter showed a gallon had been taken. He stated that he called Elmore Bihr, formerly a city plumber, who inspected the meter and found that it "was in backwards, turned around."

Plaintiff further testified that he told the city's officers that he would pay 50 cents more per month than any restaurant in town, saying to them: "I will pay $2.00 a month." He further testified that there was a restaurant across the street from his place...