114 Mo. App. 296 | Mo. Ct. App. | 1905
Such extracts of the evidence as the plaintiff has seen fit to quote in its statement of the case furnish an apology for the abstracts of the record which the statute and rules of the court require it to furnish. While these quotations are meager they furnish a brief history of the case. It appears that plain
It appears that on account of an ordinance of the city of Springfield in regard to sidewalks it was after-wards agreed to increase the elevation in the doorway two and one-half inches to conform to the grade of Olive street. Olive street runs east and west and Campbell street north and south. There is a slope of eight feet from east to west in Olive street in the eighty-one feet
The court gave instructions to which plaintiff objected but asked none in its behalf. The verdict was for the defendants.
“1. The uncontradicted and admitted facts in this case are that defendants are architects and as such engaged. themselves to plaintiffs to draw plans for and superintend the construction of plaintiff’s mule barn. Now by such engagement the defendants guaranteed to plaintiffs that they (defendants) had and possessed the necessary skill and that they would use proper care to draw said plans and superintend the construction of said building in a workmanlike manner, and if they did not possess such skill, or if they were negligent in their conduct in the premises and such want of skill or such negligence caused a loss to plaintiffs in the particulars complained of, then defendants are liable to plaintiffs for such loss.
“2. If you find from the evidence that plaintiffs explained to defendants the elevation they desired for the floor of said barn and of the ‘mule alley’ thereof, and instructed them to place the same upon a certain level, and to have the same constructed on a level plane with a raise of three inches at the door from the curb level in front, and with another raise of six inches at the south end of the mule alley, and if you further find from the evidence that defendant undertook and agreed to cause the floor to be constructed in such manner, and if you further find from the evidence that defendants by any want of skill or by any negligence on the part of either*302 of them, caused said floor to be constructed in such manner, and if you further find put to a greater outlay in excavating, and filling, and in the building of walls than they would have been had the floor been placed as agreed upon, then plaintiffs are entitled to recover of defendants the amount of such unnecessary outlay. And if under such circumstances the building as constructed is less valuable than the same would have been if constructed according to such agreement, then plaintiffs are entitled to recover of the defendants an amount equal to such difference in value. It is incumbent on the plaintiffs to prove the facts necessary to a recovery as above set forth by a preponderance or greater weight of the evidence, and unless they have done so your verdict should be for the defendants.
“3. If you find from the evidence that defendants drew the plans and submitted them to plaintiffs and that the plans so submitted were agreed upon between them, and that the building was afterwards constructed in accordance with such plans, except changes mutually agreed upon; then plaintiffs cannot recover even though there may have been a misunderstanding between them as to the particulars complained of, unless such misunderstanding was caused by a want of skill or by negligence on the part of the defendants.
“4. You are the sole judges of the credibility of the witnesses and of the weight to be given their testimony. In passing upon the weight of their testimony you may take into consideration their interest, bias or prejudice, if any, their relationship to the parties, and to the case, if any, the probability or improbability of the story related by them and any and all other facts and circumstances in evidence which in your judgment would add to or detract from their credibility or the weight of their testimony.”
The plaintiff’s criticism of the first instruction is as follows:
*303 “(a) The instruction is vague and leaves the jury to guess at what the court meant by the language, ‘or if they were negligent in their conduct in the premises.’
“(b) The term proper care is not explained or defined in the instruction or in any other instruction.
“(c) It entirely overlooks the allegation of the petition that defendants represented the plans to be of a character different from what they were in fact.
“(d) It limits liability of defendants to want of skill in drawing the plans; or to want of skill in superintending the building; or to negligence in drawing plans; or to negligence in superintending the work; whereas they are liable if they misrepresented the plans no matter how skillfully the plans were drawn and no matter how skillfully the work may have been done. And they are liable even if the plans were skillfully drawn and even if the work was skillfully done, if the completed work did not give plaintiff the building contracted for. This may not have been the result of negligence.”
There is nothing vague or uncertain in the language of the instruction. If there are terms used which plaintiff thought should be explained to the jury why did it not ask an instruction properly defining such terms? Why lie by and wait the chances of a favorable verdict before making complaint if it apprehended that the jury would not understand the meaning of terms used in the instruction as given, which is not erroneous? In these circumstances plaintiff must abide the result. [Merrill v. City of St. Louis, 12 Mo. App. l. c. 479; Construction Co. v. Wabash R. R. Co., 71 Mo. App. 626; Wheeler v. Bowles, 163 Mo. 398, 63 S. W. 675.]
There is no evidence that defendants misrepresented the plans for the barn to the plaintiffs. The gravamen of the petition is that defendants “either drew the plans so as to call for the erection of the basement walls under said building twenty-one inches higher than the same should have been erected according to the instructions
“That plaintiffs cannot state which alternative is true, whether defendants drew the plans wrong, or, having drawn them right, negligently superintended the construction of the walls, as aforesaid, but plaintiffs say that they believe that the defendants committed an error or errors in the drawing of the plans and specifications, but if so the defendants were also negligent, careless and unskillful in the superintending and directing the construction of such walls, and in not discovering such error or errors while so superintending the construction thereof.
“That the construction of the basement walls, as aforesaid, in the manner aforesaid, under the direction and superintendence of the defendants, caused a rise of thirty inches from the entrance on Olive street north to the south wall of the basement, which is about one hundred and four feet, instead of a rise of only nine inches, as it should have been, which rise of nine inches was to have been a rise of three inches,’ as above described, at the door, and six inches at the beginning of the mule alley, as above described, and that the mule alley was to have been on a level, but that the mule alley as constructed slopes six and two-eighths inches from the north wall of the building to the south end of the said mule alley, and the balance of the floor of said building has a decline of about twenty-four inches to the south door of the said barn from the said south end of said mule alley.”
In short, that defendants were negligent and un
T. W. Eobertson, one of the affiants in support of the motion, stated that pending the trial he met A. W. Ward, one of the jurors, on the street in the city of Springfield and had a conversation with him in which Ward, in reply to a question as to whether he thought he would get off the jury in time to vote at the primary
The fact that some of the jurors casually saw the barn did not affect their verdict. Jurors in civil cases are not required to be kept together under lock and key nor under the guard of an officer. They are permitted to go about the streets during the recesses of the court pending the trial and if in so doing they casually see the thing in dispute it is the fault of the law not of the jurors. For if they do not examine the thing with the view of ascertaining for themselves the truth of the matter in controversy or forming some opinion about the points in dispute, no harm is done. There is nothing in the affidavits to show that either of the three jurors viewed the barn for the purpose of gaining information that would
In respect to the alleged misconduct of the juror Ward, there is a conflict in the evidence which the trial court resolved in favor of the juror, and we think it is our duty to defer to the finding of the trial judge in matters of this sort. He is presumably acquainted with the affiants and if they are influenced by bias or prejudice, knows that fact. The jurymen are under his eye during the progress of the trial and their demeanor is observed by him, hence he is in a much better position to arrive at a correct conclusion in regard to their alleged misconduct than we are, and, I repeat, that his ruling in such matters should be deferred to by an appellate court unless it substantially appears that he has erred in finding there was or was not misconduct on the part of one or more of the jurors.
It does not substantially appear that the learned trial judge erred in finding there was no misconduct of the jurors in this case, and the judgment is affirmed.