Wyatt v. Central Coal & Coke Co.

• Decision Date: 11 November 1918
• Docket Number: No. 12982.,12982.
• Court: Missouri Court of Appeals
• Parties: WYATT v. CENTRAL COAL & COKE CO.

209 S.W. 585

WYATT v. CENTRAL COAL & COKE CO.

No. 12982.

Kansas City Court of Appeals. Missouri.

November 11, 1918.

Appeal from Circuit Court, Macon County; Vernon L. Drain, Judge.

"Not to be officially published."

Action by William Wyatt against the Central Coal & Coke Company. Judgment for plaintiff and defendant appeals. Affirmed.

B. R. Dysart and Walter C. Goodson, both of Macon, for appellant.

Ed. S. Jones, of Macon, for respondent.

ELLISON, P. J.

Plaintiff's action is for damages to his real estate alleged to have been caused by defendant's negligence. He recovered judgment in the trial court.

Defendant operates a coal mine, and in connection therewith constructed a "washer plant" located on or across a small stream about a mile above plaintiff's land. The plant consisted of a reservoir of near 20 acres; below that a catch basin of 4 acres, and still below that a settling basin or impounding pond. These are connected by a spillway. The plant is used to wash coal screenings so as to prepare them for market by separating them, as near as may be, from all deleterious or poisonous substances.

The large reservoir was built across the stream and formed a dam to the waters that flowed therein during wet seasons and occasional rains. While these bodies of water were connected by a spillway from one to the other, there was nothing to divert the superfluous water flowing in the creek before it reached the plant. The consequence was that in wet seasons and heavy rains the water poured through and over the slack beds containing the foul and deleterious substance above mentioned, and conveyed it thence down to plaintiff's land, and spread over a large part of it.

There was evidence in plaintiff's behalf tending to establish his case. Murphy v. Gillum, 73 Mo. App. 487. The following is taken from his testimony:

"The slack washer is right north of my place, about a mile and a quarter. Every time we have an ordinary rain or a pretty good rain it overflows. It has been doing this 15 or 16 years that I know of, ever since I have been in that neighborhood. This slack washer is owned and operated by the defendant in this case. This slack washer is a concern that washes all the coal and gets it ready for the market. They have a big pond to hold the water, the main reservoir, and they pump water out of that into the slack washer to wash the coal, and then that water, after they get through with it, is run into a settling pond they call it, and the slack or impurities that don't go out with the water, they have a car and incline to run this dirt out, and it is dumped into a big dump so the car will run back when it is empty. The first dam they had there wasn't big enough to hold this, and it broke with the high water and run down through Clay Bank (the stream). The first time it broke must have been in 1910. From 1912 on down they used to let this first pond, they call it, instead of having the spillway on the west side, as they have got it now, they used to let the surplus water from the big reservoir run through the settling pond and run out at the other end, and this got so full it broke when the high water came. The dam to the lower pond or reservoir which broke was big enough as long as it would hold the stuff, but it was not nothing like it ought to have been to hold this slack. All the water that came down from the upper reservoir during that time all went through the lower settling pond. AU the water that came down from the slack washer had to go through the settling pond."

The defense, in part, was that rains and floods of such extraordinary character as to be properly called the act of God caused the overflow and breaking down of the banks to defendant's plant, and that consequently defendant was not liable. This was submitted in one of defendant's instructions, and the jury found against it.

In this connection defendant insists that there was error in plaintiff's first instruction, in that it purported to cover the whole case and directed a verdict thereon without including the hypothesis that the damage was done by the act of God. The rule is that nothing which is a part of plaintiff's case and necessary to its maintenance can be omitted from his instruction directing a verdict, even though the defendant has such omitted matter submitted in an instruction in his own behalf. Hall v. Coal & Coke Co., 260 Mo. 351, 367, 168 S. W. 927, Ann. Cas. 1916C, 375; Bellows v. Ins. Co (Sup.) 203 S. W. 978; Delfosse v. Railway Co. (Sup.) 201 S. W. 860; Kerr v. Bush, 198 Mo. App. 607, 617, 200 S. W. 672.

Applying this, we find defendant's objection to the instruction not to be well founded. For the absence of the act of God is not a part of plaintiff's case. It is a matter of defense, and, as we have stated, was incorporated in defendant's instructions; and this notwithstanding it was not set up in the answer.

The same may be said of the other objection that the instruction should have included the hypothesis that plaintiff had not theretofore brought an action for the injury and had recovered $350.

Notwithstanding the liberal manner in which the trial court treated defendant in instructions given, it makes complaint concerning three that were refused. One asked that, if the jury believed any witness had willfully sworn falsely, etc., his whole testimony might be rejected. There was no error in this. The trial court did not think the evidence justified the submission that any one had willfully given false testimony. By reference to the opinions in ...