Williams v. Dent Iron Co.

• Citation: 30 Mo.App. 662
• Parties: W. P. WILLIAMS, Respondent, v. DENT IRON COMPANY, Appellant.
• Decision Date: 08 May 1888
• Court: Court of Appeal of Missouri (US)

30 Mo.App. 662

W. P. WILLIAMS, Respondent, v. DENT IRON COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

May 8, 1888

APPEAL from the Dent Circuit Court, HON. THOMAS A. BRUCE, Judge.

Reversed and remanded.

L. B WOODSIDE, for the appellant: The measure of damages is a matter of law to be decided by the court, and whenever it shall appear that the jury have disregarded the instructions in this respect the verdict will not be permitted to stand. Sedg. on Meas. of Dam. [6 Ed.] 768. The measure of damages in the case was the loss to the rental value of the property for the time, and the court erred in refusing to permit defendant to show that value. Pinney v. Berry, 61 Mo. 360. The court erred in permitting the plaintiff to answer the question how much he was damaged by the contamination of the water. The answer to the question could be but a mere opinion or estimate. The witness is to testify to facts which he has seen or heard; his opinion is not to be given, for it is the opinion of the jury on the testimony which forms the verdict. Sedg. on Meas. of Dam. 748. The general rule which requires a witness to speak facts within his knowledge is applied to the subject of compensation. The damage must be proved like any other fact in the cause, and no testimony amounting to a mere opinion is competent. Sedgwick on Measure of Damages [6 Ed.] 749. The court erred in permitting plaintiff to show what testimony was introduced before justice Malone at the time the judgment was rendered, which was pleaded in bar of this action, and erred in refusing plaintiff's instruction number one. The petitions in the two cases were identical and the same facts might have been proved under either. The former judgment was by default. The neglect of a defendant to answer and a decree pro confesso are equivalent to an admission of the allegations of the bill as to all parties against whom such a decree passes. 6 Wait's Act. and Def 771. The principle that, whenever a matter is adjudicated and finally determined by a competent tribunal it is considered as forever at rest, embraces not only what was actually determined, but it extends to every other matter which, under the issues, might have been litigated and decided in the suit. 6 Wait's Act. and Def. 786, and cases therein cited; Danaher v. Prentice, 22 Wis. 311; Parkhurst v. Summer, 23 Ver. 538; Phelan v Gardner, 43 Cal. 306; Petersine v. Thomas, 28 Ohio St. 596. When the parties and proceedings are identical and the court which first determined the controversy had jurisdiction, such determination presents a plain case of res adjudicata, although the suit first determined was commenced last. Poorman v. Mitchell, 48 Mo. 45. When the record does not positively show what was passed upon, parol evidence may be introduced. Spradling v. Conway, 51 Mo. 51. But in this case the record showed that everything embraced in the petition was included in the judgment, and parol evidence cannot be introduced to contradict the record. Sweet v. Maupin, 65 Mo. 65.

J. R. CALLAHAN, for the respondent.

OPINION

ROMBAUER P. J.

The plaintiff filed a statement before a justice of the peace August 23, 1887, asking for one hundred and fifty dollars damages averred to be caused to him by the following state of facts:

Plaintiff is the owner of a three-acre lot of ground situated on a channel or ravine below defendant's mine, and complains that the defendant " pumps water by means of a steam engine and pump from a pond of water where the ore and dirt was taken out of sad mine, and throws it on the iron dump and in the jigs, and the mud, iron ore, and water run down the natural channel and ravine upon and through and across plaintiff's land and make the water so muddy and so tinge it with iron ore that stock will not drink it, and also has damaged the stock lot of ground."

The complaint then proceeds as follows: " Plaintiff states that just above his land and between his land and the iron mine there is a natural spring of water running out of the ground and across plaintiff's land, which water plaintiff has had the use of for more than twenty years and that the mud and iron ore and muddy water come down the ravine and branch and cross his land and mix up with the water from the said spring and destroy its use for stock water, and plaintiff states that he uses his land as above described for a stock lot and pasture, and that on account of the water on same being made unfit for use for his stock by reason of said defendant washing and jigging the dirt out of iron ore with water, and wrongfully and negligently permitting the mud and iron ore and muddy water to run down the branch and ravine and across and upon his land which destroys the use of the water for stock, and the iron and mud left on said land by defendant, he is damaged in the sum of one hundred and fifty dollars, for which he asks judgment against defendant."

On trial of the cause before the circuit court the defendant filed an answer containing a general denial and a plea of former recovery.

There was a trial by jury which resulted in a verdict and judgment for plaintiff for fifty-seven dollars and sixty-six and two-thirds cents, from which judgment the defendant appeals.

The main complaints made on this appeal are, that the complaint states no cause of action and the proof shows none, that the court erred in admitting illegal evidence on the question of damages and former recovery, and gave erroneous instructions to the jury on that subject, and that the court erred in its instructions to the jury on the question of former recovery.

The defendant pleaded and the proof showed that, subsequent to the institution of this suit, to-wit, September 24, 1887, the plaintiff brought another action against the defendant before a justice of the peace; that the complaint filed in such second action was identical with the...