McMillen v. City of Columbia

122 Mo. App. 34 | Mo. Ct. App. | 1906

ELLISON, J.

This action was instituted to recover damages from the defendant city for lowering the grade in an alley upon which plaintiff’s property was located. The judgment in the trial court was for the plaintiff.

Before an answer was filed defendant moved that a certain portion of plaintiff’s petition be made more definite and certain. The motion was overruled and exception taken. Afterwards the defendant filed its answer to the merits and the case was tried. By filing an answer to the merits the defendant waived its exception to the action of the court in overruling the motion. [Dakan v. Chase Mercantile Co., 94 S. W. 944; State ex rel. v. Bank, 160 Mo. 640, 646; Sauter v. Leveridge, 103 Mo. 615; Silver v. Railway, 21 Mo. App. 5.]

Defendant contends that the work was done before an ordinance was passed by the city council and that therefore the city was not liable, since it had not authorized the work when it was done; and that in consequence its demurrer to the evidence should have been sustained. An examination of the record shows that there was evidence tending to show that the work was not begun until after the ordinance was passed. On pages 21 and 22 of the abstract of the street commissioner’s testimony, it clearly appears that the ordinance was passed before the work was done. He stated he was acting in obedience to the ordinance. We do not regard an answer of the same witness which appears on page , 23 and dwelt upon by defendant, as so qualifying what was before stated as to justify throwing out what was before stated. The answer, at most, only justified an inference that the grading was done before the passage of the ordinance. It was therefore a question for the jury and the trial court properly refused the instruction in the nature of a demurrer.

Plaintiff in order to show the amount he had been damaged by the act of defendant introduced a witness, Rummans, and asked him if he had looked at the property with a view of buying. The witness answered that he had. He was then asked what he would have been willing to pay for it provided the alley had been in good condition for travel. The court sustained defendant’s objection to the question. He was again asked if he had examined the property with a view to buying it; and he answered that he had. He was then asked, why he had not bought it, and defendant’s objection to the question was sustained. He was then asked, “What were you willing to give for the property?” and the witness answered by asking, “In the shape it is now?” The defendant objected to the “question and answer” which was overruled. The Avitness thereupon answered, “I would not buy it at all in the condition that it is in now.” The question was improper. The proper rule is to ascertain what was the value just before and just after the injury. Whether a certain person would or would not buy it, or what he was willing- to give, is of no consequence and is beside the issue. In view of the fact that the contest in the case is over a question of quantum of damages, we must rule the error as harmful since it bore in an improper manner upon the very thing in contest between the parties.

The judgment must therefore be reversed and the cause remanded.

All concur.