| Mo. | Jun 30, 1900
This is an action by plaintiff against the defendant for fifteen thousand dollars damages to three
The petition alleges that defendant is a' corporation organized under the laws of Missouri, and that plaintiff is, and at the times hereinafter mentioned was, the owner and in possession of the following described tract or parcel of land, situated in the city of St. Louis, in the State of Missouri, viz., a lot of ground in city block number 900, having a front of sixty-three feet and four and one-half inches on the north line of Olive street, by a depth of one hundred and seven feet and four inches to an alley, on which there are and were at all the times hereinafter stated, three houses numbered, respectively, 1927, 1929 and 1931, Olive street.
Plaintiff states that heretofore, viz., in 1889, defendant took possession of the tract of land situated on the south line of Locust street and extending from Nineteenth to Twentieth streets in said city of St. Louis, and running back southwardly to an alley, and being immediately north of said property of plaintiff, and separated therefrom by the said alley, which runs east and west through said block; and defendant heretofore, viz., in 1889, erected a power house and other buldings, and constructed and erected and put in place, large and powerful engines and other machinery on said ground occupied by it. And ever since their construction and erection defendant has operated said engines and machinery night and day, and in doing so has caused continual loud noises, and has caused a shaking, reverberation, vibration and quivering of the ground in the vicinity and especially of the said ground of plaintiff; and has caused the shaking, reverberation, movement and disturbance of said houses of plaintiff, and by reason of said noises and shaking and reverberation, movement and disturbance of said ground and houses of plaintiff said houses have been injured and damaged, making it necessary to -repair the same from time to time, and continually, ever since defendant constructed and erect
And said shaking, reverberation and movement of said houses and the ground on which they stand, have cracked, weakened and permanently injured and damaged said houses to the extent and in the sum of five thousand dollars.
And by reason and in consequence of the said noises, and the shaking, vibrating, reverberating, quivering and movement of said houses, it was impossible to rent the same, and they are, and have been, unfit for occupancy and untenantable, and they ■ have been unoccupied and not rented nearly all the time, since defendant erected said machinery. And by reason and in consequence of said houses being rendered untenantable and unfit for occupancy, as aforesaid, plaintiff has been deprived of, and has lost the income and rental of said property to the extent and in the sum of five thousand dollars.
And plaintiff says that by reason and in consequence of the acts of defendant, aforesaid, she has been damaged in the sum of fifteen thousand dollars. Wherefore she asks for judgment for that -sum and her costs.
To this petition the defendant filed the following:
“Now comes defendant in the above entitled cause, and for its amended answer to plaintiff’s petition states that it admits it is a corporation organized under the laws of the State of Missouri. And defendant for further answer and defense to said petition denies each and every other allegation of said petition. Wherefore defendant, having fully answered, prays to be dismissed hence with its costs.
“And for a further answer and defense to said petition defendant states that, whatever injury accrued to plaintiff*8 herein by reason of any act or thing complained of in plaintiff’s petition, or upon any cause of action therein- stated, accrued to plaintiff more than five years next before filing her petition herein. Wherefore, defendant says the alleged cause of action stated in plaintiff’s petition was, and is, barred by the statute of limitations; and defendant, having fully answered, prays to be dismissed hence with its costs.”
A trial before the court and jury resulted in a verdict and judgment for defendant from which plaintiff appeals.
The evidence adduced by plaintiff tended to show that the operation of the machinery in the power house of defendant shook the houses of plaintiff, producing vibrations, and causing the windows to rattle, to such an extent that they were untenantable. This evidence extended back for a period of more than five years before the institution of the suit. A number of witnesses testified to the falling of plastering and to the breaking of glass, crumbling of plastering, etc.
John J. Reardon a witness for plaintiff testified that he was in the real estate business and had been for twelve years, and that he had been in one of those houses and noticed that it shook and that the windows rattled as if in a storm, and that the windows all over the house shook, etc. He said if there w-as no shaking the house could have been rented in 1892, 1898 and 1894 at $50 a month, and in 1895 and 1896 at $45 a month.
He was then asked this question: “Now, with the shaking there, as you found it, what do you say to the possibility of renting those houses or keeping them rented at those figures or any other figures?”
Defendant objected to the question, and the court sustained the objection, and plaintiff then and there excepted.
Jeremiah Ryan testified that he was in the real estate business, and that he had been in that business for six years, and that he had been in one of those houses and noticed that
His further examination, by plaintiff, was then as follows: “Now, with the shaking that you noticed, in your opinion, as a real estate man, is it possible to keep those houses rented at anything like the figure you indicated?”
Counsel for defendant objected to the question, and the court sustained the objection and plaintiff excepted.
“Q. I will ask you, under the same conditions, with the shaking going on out there, is it possible to keep them rented at all?”
Defendant objected to the question. The court sustained the objection, and plaintiff duly excepted.
Daniel Shine, a witness for defendant, testified that he knew the house of Mr. Carey, on northeast corner of Twentieth and Olive and immediately west of 1931, and that it was occupied on the first floor as a saloon, and had been for a year, more or less.
Defendant then asked him this question: “Has that house been vacant, to your knowledge, within the last four years?”
Plaintiff objected to the question as irrelevant and immaterial. The objection was overruled and plaintiff duly excepted.
The witness answered: “I never kept any track of it;' it seems to me it was always rented. I have been out of town.”
Ped. Ziebig was a witness for defendant and said that he had been in the real estate business for twenty years,
“Counsel for plaintiff: I object to that question; that has nothing to do with this case. It is calling for testimony that is irrelevant and immaterial.” Objection overruled. Counsel for plaintiff, then and there, duly excepted to the ruling of the court.
“Q. Mr. Ziebig, taking a house situated on Oliva street, say from Seventeenth to Twenty-sixth, where there are occupations of a variety of character, dwelling houses, boarding houses and saloons ? . . .
“Counsel for plaintiff: I take it Mr. Ziebig knows that locality.”
“Q. What, in your judgment, would be the per cent of time, I mean of vacancy, covering a period of five years ?
“Counsel for plaintiff: I object to that as irrelevant, immaterial 'and incompetent.”
“The Court: Mr. Ziebig, is there any definite percentage? Can you state any definite percentage of vacancies in houses such as indicated by counsel? A. I can not state that. I have kept no record, so that I have not anything definite to show that such are the facts. I can only state that we estimate that there is a certain per cent of vacancies.
“Q. What do you base your percentage on? A. On our experience, taking it as we go along.
“The Court: You may answer the question.” To which ruling of the court, plaintiff, then and there, duly excepted.
“Q. Please answer the degree and extent of vacancy,
“Q. Taking a brick house, stone front, two stories, with a third story mansard roof, upon usual foundations and walls of usual thickness, what would you say would be the cost of keeping them in suitable repair for tenants, covering a period of five years, houses twenty years old?
“Counsel for plaintiff: I make the same objection— that the question calls for testimony that is irrelevant, immaterial and incompetent.
“Q. Mr. Ziebig, can you answer the question stated, with any degree of accuracy. A. I think I can come very near it.”
Objection overruled.
Counsel for plaintiff then and there duly excepted to the ruling of the court.
The witness answered: “The cost is from $40 to $50 a year on an average.”
“Q. Eor each house? A. Yes, sir.”
“Counsel for plaintiff: T^t is all objected to and exception saved.”
Charles A. Mueller, a witness for defendant, testified that he was a real estate agent and had been in the business twenty-seven years and was familiar with the renting of houses in this city. His further examination was as follows:
“Q. Are you able to state from your experience the per cent of .vacancies of dwellings in a district such as that about Twentieth and Olive, one year after another?
“Counsel for plaintiff: I make the same objection as I did before — that is, that it calls for evidence that is irrelevant, immaterial and incompetent.
The witness then answered: “I would say ten per cent is the loss by vacancies.”
“Q. Are you able to state, relative to repairs, how much on an average is required to keep a house, say a nine-room stone front, with Mansard roof, twenty or twenty-five years old, in repair?”
Same objection by plaintiff as to last previous question. Objection overruled .by court, to which action of the court, plaintiff then and there excepted.
The witness answered: “It would take $40 or $50 a year. I have always found that tenants object to living next to a saloon; it is harder to rent.”
On cross-examination the witness said: “Some houses are rented more continuously than others. Where the tenant is satisfied with the business he is doing or is prosperous he is likely to remain. Each house about stands on its own individual circumstances after all. The same is true of repairs; some of those houses we repair four times as much as others; we take the average in summing up, and that is about what it would be. If a dwelling is situated near a power house, and the machinery therein shakes the house so as to cause the windows to rattle and prevent people from sleeping, it would have some effect on the renting, certainly.”
On re-direct examination he said: “The houses would rent, but of course they wouldn’t bring the same rent as if they hadn’t that noise there; I would think the rental was doing very well if there was less than ten per cent vacancies with all that noise.”
Festus J. Wade, sworn on part of defendant, said he had been in the real estate business fifteen years in St.
“Q. Mr. Wade, in your experience as a real estate agent in the renting of dwelling houses in the city of St. Louis, what would you say would be the average amount or per cent, with reference to the time as to vacancies, covering a period of, say five years?”
“Counsel for plaintiff: I object to that as irrelevant, immaterial and incompetent.” The court overruled the objection and plaintiff then and there duly excepted.
The witness answered as follows: “Well, a great deal would depend upon the character of the property. If it is new, the vacancies of course would be of less frequency than old property. Property, such as you referred to a short time ago, would run from ten to fifteen per cent for vacancies in houses probably fifteen or twenty years old. Eepairs would run about ten or fifteen per cent in keeping property of that character up.”
On cross-examination the witness stated:
“Of course, Mr. Wade, what you mean by that is that some houses are rented nearly all the time, and others are vacant a great deal of the time, and taking each particular house when you come to an average of all of them, they average about as you have stated? A. Yes, sir; a general average.
“Q. You don’t mean to say all houses are vacant the same extent of time? A. No, sir;.but I will explain if you will allow me. A house located on Lindell boulevard would not be apt to be vacant as frequently as a house located on Olive street, about where these houses are.”
Adam Boeek, sworn on the part of defendant, said he had been a real estate agent in the city of St. Louis since 1866; had experience in renting dwellings in this city. His further examination was as follows:
*14 “Q. From your experience, as a real estate agent, in managing dwelling houses, what would you say would be the average amount of vacancies, in per cent of time, that houses would be vacant on an average, say, during a period of five years at the present time ?”
“Counsel for plaintiff: I make the same objection as I did to the former witness, viz., that the question calls for testimony that is irrelevant, immaterial and incompetent.” Objection overruled, and counsel for plaintiff then and there duly excepted to the ruling of the court.
The witness then answered: “The average of vacancies, of course, will depend a good deal on the kind of times we are having, but within the last five years times have been rather depressing and there are really more houses than people to rent them; therefore, the vacancies have been greater on an average than they would have been in more prosperous times. I should say that about ten months out of twelve would be a fair average of houses that are not new — brand new. A brand new house would likely be occupied the whole twelve months out of the year, but houses like those on Olive street between Nineteenth and Twentieth, I should say, ten months out of twelve would' be occupied; would be vacant two months out of twelve, sixteen, and two-thirds per cent.
“Q. Now, what would you say as to your repairs — as to the average amount expended for repairs for the houses per year?”
“Counsel for plaintiff: The same objection, viz., that the question calls for testimony that is irrelevant, immaterial and incompetent.” Objection overruled by the court. Counsel for plaintiff then and there duly excepted to the ruling of the court.
The witness answered: “On houses that are as old as those houses, are those two houses — understand those two houses
On cross-examination the witness testified as follows:
“The house I am agent for belongs to Mr. Dodd, president of defendant. It is occupied as a boarding house; the same tenant occupies the east house of these three houses of plaintiff.
“Q. Well, of Course the same as you heard me ask Mr. Wade, when you get at a certain percentage of these things, you mean, pick out a number of houses and average them up; for instance, you take the house of Mrs. Irons, that has been occupied for two years steadily and put that with the others? A. Yes, sir.
“Q. That is, you want to say that some houses rent right along and others are vacant a great deal? A. Yes, sir.
“Q. When you come to average them up, that is about the percentage, that would be about correct? A. Well, that is about right.
“Q, The same way in regard to repairs? A. In other words, I think. . . . Now Mr. Boeck, the same is true in regard to repairs; some houses require more than others? A. The repairs depend entirely on the construction of the*16 house; houses that are well constructed don’t need as much repairs as those that are not.
“Q. Then I am correct in saying the amount of repairs on one house may be entirely different from the amount of repairs on another house? A. Yes, sir, that is according to construction.
“Q. Eor various, divers and sundry reasons, one house' may require a great deal of repairing and another may not ? A. That, is not so much a matter of chance. I think the repairs of houses is not much like chance.
“Q. All houses don’t require the same amount? A. If they are all built the same.
“Q. They are not all built the same? A. No, sir.
“Q. Then as a matter of fact all houses don’t require the same amount of repairing? A. "Well, all right.
“Q. Ain’t that true? A. All right.; we will agree on that.”
Among the instructions that were given to the jury, there is but one criticised by plaintiff, and that one was given by the court of its own motion. It reads as follows:
“The jury are instructed that if they shall find that by reason of vibrations and other disturbances produced by defendant, plaintiff’s said houses were injured and plaintiff has lost rents, the jury in estimating plaintiff’s damages for such injuries and losses, shall include damages only for those injuries and losses which are directly the result of the vibration and disturbance produced by the defendant, and in estimating such damages the jury should not consider the cost of repairs made necessary by ordinary wear and tear, and such losses of rents as under the testimony would probably have occurred if such vibration and disturbances had not occurred.
“The court instructs the jury that the plaintiff in this case, in order to recover, must prove by a preponderance of the testimony, a real and tangible injury to her property,*17 either permanent or by necessitating repairs, or causing vacancies in the premises caused by the shaking or vibrations due to the operation and maintenance of an electric plant by defendant, because in a large city like St. Louis, where trade and manufacture and commerce are so general, slight annoyances that may causé inconvenience to -whimsical persons, but which do not produce any real and substantial injury to property as indicated above, or are not found to be injurious by persons of ordinary physical condition and sense brought in constant contact with such vibration or shaking, must be endured, and are not the ground for damages, and in this case plaintiff is not in any event entitled to any damage for any injury to her property, which you believe from the evidence resulted from any other cause, such-as cable cars or other causes, than the shaking and vibration caused by defendant’s plant and machinery.”
To the action of the court in giving this instruction, plaintiff then and there duly excepted.
The .first question presented for consideration on this appeal is with respect to the action of the court in admitting over the objections of plaintiff testimony of real estate agents to the effect that taking a large number of dwelling houses in the city of St. Louis for a period of five years before the trial, and the average time the houses taken as a whole would be vacant, would equal a certain per cent of the whole period. Plaintiff’s contention is that this evidence was incompetent for any purpose, while defendant insists that even if the admission of such evidence was error, it was harmless error, because it went solely to the measure of damages, and could have had no influence in determining the question whether plaintiff’s right had been violated in the manner charged in the petition. It seems to us that defendant’s contention is illogical, for if as it virtually concedes, the evidence was not competent for the purposes of determining
Moreover, as the rental of houses depends so much upon their locality, structure, convenience, and conditions which render them habitable or otherwise, the proportion of time which any particular house may be rented, unless in the same locality and of similar character and condition, furnished no criterion by which the length of time that plaintiff’s houses were not rented could be determined.
It will not.be contended that a house which vibrates and shakes to such an extent as to render it uncomfortable, would rent so readily as other houses in the same locality not thus affected. In other words each house must, in a large measure, stand upon its own individual merits.
The evidence was clearly inadmissible for any purpose and should have been excluded.
So, with respect to the action of the court in overruling the objections of plaintiff, to the testimony of the real estate agents, witnesses for defendant, with respect to repairs which dwelling houses in the city of St. Louis require yearly upon an average. This testimony was also inadmissible, and should have been excluded for the same reasons.
It is asserted by plaintiff that the court erred in allowing David Shine, a witness for defendant, to testify that the
Plaintiff also insists that the court erred in refusing to permit the real estate agents, Eeardon & Eyan, called by her to testify as to whether or not it was possible to rent the houses of plaintiff, with the houses shaking and vibrating as they saw them.
These witnesses testified to the condition of the houses from actual observation, they were experienced in renting houses in the city, and it was entirely proper, we think, for them to give their opinions as to whether the houses could be rented or kept rented, in the condition that they were then in, providing their condition was then the same as before this suit was instituted.
The instruction given by the court of its own motion is criticised upon four grounds, the first of which is the improper use of the words “whimsical persons” therein, when there was no proof that any of the witnesses were people of that kind. By the use of these words it seems to be implied that the persons who moved into and then out of plaintiff’s houses because of their shaking and vibrations, were not ordinary persons, having ordinary sensibilities, but were persons of peculiar notions or ideas, when there was no evidence to justify any such implication.
The second criticism is that this instruction in effect told the jury that in a large city like St. Louis, where trade and manufacture and commerce is so general, slight annoyances that are not found to be injurious by persons of ordinary physical condition and sense brought in constant contact with such vibrations and shaking, are not grounds for dam
The third and fourth grounds upon which the instruction is criticised we think untenable.
For these considerations we reverse the judgment and remand the cause for further trial.