McGrath v. Heman Construction Co.

Apr 2, 1912

Reporters:: , ,
Before:: Reynolds

REYNOLDS, P. J.

(аfter stating the facts).- — First. When the panel was being examined on voir dire, counsel for plaintiffs made statements that are claimed to have been prejudicial. It is sufficient to say that objection having been made to these remarks, the court should have checked counsel, but we do not think that failure to do so -in this instance constitutes reversible error. We notice it now only to prevent its recurrence on a new trial, if one is had.

Second. The second error 'assigned must be sustained. One of the respondents in the case, as also a witness for respondents, over the objection and exception of appellant, were permitted to testify that after part of the wall had fallen, the city, by one of its officers, had entered upon the рremises, after certain braces had been taken out that extended across the alley, and had shored up the house. This was some months after’ the act of appellant in excavating. As one of the respondents testified, “The city shored thе house and put two or three iron bars in every room clear ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍through the house.” It was objected to this that the city coming in afterwards and putting in props and thereby doing additional damage by reason of this work done by the city, that appellant was in no wаy accountable for it. Having previously objected and the answers made as above, counsel moved to strike out the answers. This motion was overruled, counsel excepting. The other witness for appellant, asked about what the officer or representative of the city before referred to had then done, was permitted to testify that he had proceeded to take out the shores that *191had before then been pnt in on the outside of the building by respondents and which had extendеd into the alley, and that he had put in underpinning directly under the wall, describing the work this officer had then done. Objection to this last was overruled by the court, the court saying that he overruled it on the statement made by counsel for respondents, that he would therеafter connect what this officer did with the acts of defendant. No such testimony was afterwards introduced nor was this testimony excluded. In the light of the averment in the petition in the case, all this testimony as to the acts of the officer or representаtive of the city was bound to be prejudicial to the appellant. The petition averred that the house had remained in the condition in which it was 'after being undermined by the work of the Heman Construction Company “until the city of St. Louis against the protests and objections of plaintiffs in pursuance of its Ordinance No.--on or about---, 190 — , removed all the supports, props and braces they had placed, as stated, in, about and under their said home, and that said city thereupon placed other prоps, braces and supports in, about and under their said home, which completely filled and took up all the space in the interior thereof and that thereby it was and became impossible for plaintiffs or anyone else to live in said house, and that later, namely, on or about---, 19- — , the said city, in pursuance of its ordinance No.---, against the protests and objections of plaintiffs, took down, destroyed and completely removed and demolished the said house down to the top of what was remaining of the stone foundation wall thereof,' so that their said lot became and was wholly vacant and unimproved, and that thereby plaintiffs have completely lost and been deprived of their said house, which was the direct result and consequence of the original wrongful, careless and negligent injury to said house by defendant herein set forth on November 10, 1902.” Undoubtedly this petition *192had been read to the jury and while this averment was proper as long as the city was a joint tortfeasor, it had no place аs against this appellant, which was alone defendant after the decision of the Supreme-. Court. Admission of any evidence in rapport of it, the city being out of the case, was obviously prejudical to appellant. We may here note that there was no evidence whatever introduced to show that the house had been completely demolished.

Third. The third error assigned is to the exclusion of the testimony of the witness Ferriss, testifying for appellant. This witness testified that he was a contractоr and builder of more than twelve years’ experience; that he had made a thorough examination of the building inside and out in the year 1905, and that in his opinion it wia-s practicable to have repaired the building at that time. He was then asked if he had formеd an estimate as to what would have been the reasonable cost of restoring that building to its former condition, that is to the condition it was in before the piece of wall fell out, which occurred in-1902, and if he had formed this estimate as to what would havе been the cost of restoring it in that year .to its former condition. This was objected ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to until the witness should be told, by a hypothetical question, just what the condition was before the wall fell out. The court remarked that the witness had not shown any familiarity with that; that he did nоt know anything about its former condition, that is, he was not shown to know anything about its former condition. The witness then stated that he had gone all through the building. The court remarked that the witness did not know what the condition of the building was at the time of its destruction. Counsel for appellant then asked this question: “We will assume that prior to the injury to it the north wall was intact and the interior of it was in good condition; assume that now; what would have been the expense in 1902 of restoring it to that- condition after *193this injury?” This was objected to, the objection sustained and exception saved. Counsel then asked the witness this question: “Did you, at the time you examined it, form any estimate of what it would have cost in 1902 to have restored thosé defects that you observed, finish it and put it in reasonably good, tenantablе and habitable condition? ’ ’ This was objected to as incompetent and the objection sustained, counsel for appellant excepting. Counsel then asked the witness this question: “Assuming that prior to this injury the building was in good condition all around — in every way, what wоuld it cost to restore it to its former condition?” The trial court sustained the objection to this, saying: “I can see that there might be fifty kinds of conditions that were good, yet be of different values as to cost. I have ruled, Mr. Eodgers; you had better proceed with the case.” This was excepted to and counsel then asked the witness: “Well, did you form any estimate at that time as to what would have been the cost in 1902 of putting that building in first-class condition for residence purposes?” This was objected to, objection sustаined and exception saved. It is argued by the learned counsel for respondents that these objections were properly sustained for the very obvious reason, as he urges, that the witness had not seen the building before the injury; that the hypothetical question is objectionable because there was a good deal more involved than the bare assumption that the north wall of the building was intact and the interior in good condition. Counsel, in his argument before us, asks “What is an ‘interior in good condition?’ ” and аnswers: “It takes more than that to make a house and to describe a house so as to ask a proper hypothetical question, which will produce in the mind of the witness a complete and perfect picture of the house.as it stood at'the moment of the injury.” ■Counsel argues that nothing is said about the number *194or height of rooms, height or thickness of walls, number of partitions, nor about windows, doors, window and door frames, number and size of the openings, ldnd of roof (whether slate, shingle or composition), whethеr front of house was brick or stone or stone backed by brick, plastering-, furring, painting, glazing, or the length, breadth or height of the house or the other numerous elements and materials of a house. We think that the illustration of counsel of the kind of question that should have been put is the most complete answer to the fallacy of his position that could be given. The hypothetical question should have been allowed to be answered. It was somewhat general, but sufficient to entitle the witness to give his opinion. It was оpen to counsel for plaintiffs to have cross-examined him as to any details, such as he suggests, as affording a test of the information ox knowledge of the witness. The exclusion of this testimony is error to the prejudice of appellant; reversible error.

Fourth. The fourth error assigned is to instruction No. 4, given by ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the court at its own instance. That instruction is as follows :

“The court further instructs the jury that if yon find for plaintiffs under instruction No. 1, and you further find 'and believe from the evidence that the injury, if any, to plaintiffs’ building was such that said building could have been repaired and restored to its former condition, then plaintiff in entitled to recover for the reasonable rental value, as shown by the evidence, of the premises (as they were just prior to said injury), for such time after the injury as the jury may find аnd believe from the evidence and the facts and circumstances of the case would have been reasonably required to repair or restore said premises to their former condition, and in that event you will include such amount in your verdict; but if yоu find and believe from the evidence that the injury, if any, to said building was such that said building could not have been re*195paired and restored to its former condition, then you are not to consider the rental value of such premises.”

The petition distinctly placed the value of the rental at twenty dollars a month. By very many decisions it has been held that the value stated in the petition is the limit of the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍measure of damage allowable. In this instruction the court submitted the question of this element of damage without any restriction whatever as to the amount. That was error.

Counsel for respondents argues in support of this instruction that,it was evident from the amount of the verdict that the jury could not have considered the element of monthly rental at all, but had found their verdict on the basis of a total destruction of the building, and had added to that the value of personal property destroyed and cost of removal of some coal; that the amount found by them is within the amount testified to as the value of the building and that to this the jury had added amounts for removal of coal and for destruction of personal property. "We are not able to agree to this. Nor are we permitted to indulge in that kind of speculation. It is impossible for us to determine what was in the minds of the jury, governing them in аrriving at their verdict when that is a general verdict as here. The instruction as to respondents being entitled to compensation for rental without limiting the amount to that claimed in the petition is incorrect. Giving it was prejudicial error against appellаnt.

Fifth. As the case will have to be remanded, it is unnecessary to pass upon the amount of the verdict, or whether it was the result of prejudice and passion. The motion for a new trial should have been sustained.

Counsel for respondents complain in that counsel for appellant, “intentionally condense a bill of exceptions, taking 354 pages of evidence ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to an abstract of 24 pages of evidence so as to minimize and if possible efface the effect of the graphic and shocking testi*196mony in this case. ’ ’ Whereupon counsel for respondent prints forty pages of the evidence, filing it by way of a counter abstract. Section 2048, Revised Statutes 1909, provides for filing an abstract when a cause is not brought up on a full transcript, аnd Rule 15 of our court, prescribing what is necessary to an abstract in an action at law, specifically provides that “the evidence of witnesses shall be stated in a narrative form, except when the questions and answers are necessary to a complete understanding of the evidence.” An abstract means an abbreviation, a summary. Comparing the abstract furnished by appellant’s-counsel With the counter abstract of respondents’ counsel, we find no additional light thrown on the casе by the latter. Tested by the statute, by our rule and by the definition, we not only find nothing lacking in the abstract of appellant, but on the contrary, it is to be commended for its brevity and very clear presentation of all the facts necessary to an understanding of the points in issue.

By reason of errors in the admission and exclusion of testimony, and in the giving of the instruction noted, the judgment of the circuit court is reversed and the cause remanded.

Nortoni and Caulfield, JJ., concur.