105 Mo. 154 | Mo. | 1891
When this cause was here on the former appeal, this court affirmed the judgment of the St. Louis court of appeals in reversing the judgment of the St. Louis circuit court. Without repeating at length the grounds upon which the court of appeals held plaintiff would be entitled to recover, it is sufficient tosíate, that it was then held and supported by the authorities that where a proprietor undertakes to do that upon his land‘which is in its nature dangerous to adjoining proprietors he must use reasonable care to work no trespass upon their possession, and it is immaterial in such a case whether the work be done by the proprietor, or by an independent contractor. Dillon v. Hunt, 11 Mo. App. 246.
So on the trial of this cause the court instructed the-jury that if plaintiffs’ goods were destroyed by the falling of a brick wall, then standing on the adjoining lot of Charles L. Hunt, the present defendant’s testator, that said wall was caused to fall upon the storeroom in which plaintiffs’ goods were by and through the negligence of certain persons who went upon said premises for the purpose of taking down said wall by and with the
It will be seen at once that one of the most material facts necessary to plaintiffs’ recovery was the privity of Hunt with the parties who were" pulling down the wall, and plaintiffs offered the direct evidence of Mr. Sexton, the chief of the fire department, tending to show his official notice to Mr. Hunt of the dangerous condition of the wall and directing him to have it taken down, and of Mr. Fruin of Mr. Hunt’s desire to have him bid on the work of removing the wall and his recollections of the men who did the work.
On the part of the defendant the court permitted Fred Ziebig to testify that he was Hunt’s agent for the collecting of the rents, etc., of this building and that he, Ziebig, made no contract with anybody to remove the wall; and that he did not know the walls were being taken down. To this evidence plaintiffs objected at the time, and saved their exceptions. It was clearly incompetent.
It was wholly irrelevant whether Ziebig knew anything about the matter. Mr. Hunt was the owner. It was shown beyond a peradventure that he was in the city the day after the fire; talked with Sexton in the immediate view of the wall; was notified then by Sexton at the time to have it removed on account of its danger. In Hunt’s absence notice to Ziebig might under some circumstances have become notice to Hunt, but notice to Hunt need never have become notice to Ziebig, as under the facts it was wholly immaterial whether Ziebig had notice.
Again, the court, over the objection of plaintiffs, permitted Munson, the insurance agent, to testify that he told Hunt not to pull down the wall. This conversation, as to plaintiffs, was “res inter alios acta.” It had nothing to do with plaintiffs’ rights, nor could it in
But the most serious error committed on the trial was the giving of the second instruction on behalf of defendant set forth in full in the statement of this cause, and the subsequent instruction reiterating the same idea given by the court of its own motion. That instruction permitted the jury in assessing plaintiffs’ damages to reduce the same by the amount of any insurance money they might believe from the evidence plaintiffs had received for losses occasioned by the falling of the wall on their goods. If plaintiffs’ goods were damaged by the negligence of Hunt or his employes, it was no concern of theirs, that plaintiffs were insured, and all the evidence of this insurance was irrelevant and incompetent, and the instruction allowing this insurance as mitigating the damages of plaintiffs was erroneous.
Pew propositions have been so universally accepted and settled as this.
Sutherland on Damages lays down the rule as follows: “There can be no abatement of damages on the principle of partial compensation received for the injury, where it comes from a collateral source, wholly independent of the defendant, and is as to him res inter alios acta. A man who was working for a salary was injured on a railroad by the negligence of the carrier; the fact that the employer did not stop the salary of the injured party during the time he was disabled was held not available to the defendant, sued for such injury in mitigation. Nor will proof of money paid to the injured party by an insurer or other third person, by reason of the loss or injury, be admissible to reduce damages in favor of the party by whose fault such injury was done. The payment of such moneys not being procured by the defendant, and they not having been either paid or received to satisfy in whole or in part his liability, he can derive no advantage therefrom
That these errors contributed largely to the verdict for the defendant is almost self-evident. And to the end that they may be remedied in another trial, the judgment is reversed and the cause remanded.
