Clay v. Board, 85 Mo. App. 237

Clay v. Board

85 Mo. App. 237 | Mo. Ct. App. | 1900

BOND, J.

— Plaintiff sued for alleged injuries to his residence lot by the cutting away of the soil and the closing up of drains or sewers, setting forth hi's cause of action, first, in a count for trespass; secondly, in a count for the negligent cutting and grading of a street, thus causing said injuries.

The defendants answered, one by a general denial, the other by a specific denial, and an averment that the work, for the doing of which the action was brought, was performed by plaintiff’s request and consented to by him upon its completion.

Issue was taken by a reply. On the trial the second count of the petition was withdrawn from the jury by an instruction of the court. The evidence showed that defendants, who were city officers, caused certain work to be done on the street in front of plaintiff’s residence. The witnesses for plaintiff testified that the work in question materially changed the grade of the street and caused substantial damage to plaintiff’s property. This was denied by the witnesses for defendants. There was no evidence of any street ordinance providing for this work. The jury returned a verdict for defendants. From a judgment thereon plaintiff prosecutes this appeal.

The errors complained of relate to the instructions given and refused. A sharp difference of opinion as to what instructions were given or refused and also as to the correct contents of the bill of exceptions arose between the court and counsel, resulting in the refusal of the court to sign the bill of exceptions tendered on plaintiff’s appeal and the subsequent filing of a bystanders bill of exceptions by leave of this court. The instructions chiefly complained of on the present appeal relates to a finding under the second count, which the jury had been told in other instructions was withdrawn from *241their consideration. Whether under these circumstances and other facts in the record the instruction complained of was prejudicial error, need not be decided. We can well see how it might have been marked given before the plaintiff had withdrawn the issue upon which it was predicated, and thereafter by inadvertence have become mixed with others and handed to the jury. Be this as it may, this appeal presents another question determinative of the incorrectness of the theory on which this case was submitted to the jury. This arises upon the failure of the court to instruct the jury upon the issue as to nominal damages raised by the evidence for plaintiff which tended to prove that by defendants’ directions the grade of the street in front of plaintiff’s residence was so lowered as to impair, if not destroy, the driveways to his lot from the street and that there was such a diversion of the flow of the water from his premises as to cause the caving of the bank supporting his lot on the street line. The city of Mexico being one of the third class (141 Mo. 624) and having given no valid authority to the defendants as its officers for the performance of the work in question, it follows that if the jury believed the testimony as to the character of that work adduced by plaintiff, the defendants were simply trespassers, and whether the work performed by them was beneficial or detrimental to the property of plaintiff, he was nevertheless entitled to a verdict for nominal damages for the violation of his property rights. Jones v. Hannovan, 55 Mo. 462; affirmed in Hahn v. Cotton, 136 Mo. loc. cit. 226; Mize v. Glenn, 38 Mo. App. 98; Ross v. Sewing Machine Company, 24 Mo. App. 353; Sedgwick on Damages (8 Ed.), secs. 98, 101; Sutherland on Damages (2 Ed.), secs. 9, 10, 11. Upon the same theory of the proof the plaintiff was entitled to recover whatever substantial damages were proven, less any special or pecuniary benefits resulting to his property from *242tbe performance of tbe work. R. S. 1899, sec. 5858 (subsection two) ; Rives v. City of Columbia, 80 Mo. App. 173, citing Jackson v. City of Columbia, 2 Mo. App. Rep. 24; Maudlin v. City of Trenton, 67 Mo. App. 452; Waldron v. Kansas City, 69 Mo. App. 50; Davis v. Railway, 119 Mo. 180; Hickman v. Kansas City, 120 Mo. 110. Tbe learned trial judge in several instructions correctly submitted tbe issue to tbe jury as to substantial or actual damages, but wholly failed to submit to tbeir consideration tbe issue as to nominal damages. Tbis was error for wbicb tbe judgment is reversed and tbe cause remanded.

Judge Bland concurs; Judge Biggs absent.