44 Mo. App. 88 | Mo. Ct. App. | 1891
The first question which we have to determine is, whether there is in this record a bill of exceptions such as we can consider. At the close of what purports to be the bill of exceptions there is the usual recital that “they, therefore, pray the court to allow and sign this bill of exceptions, and that the same may be signed and sealed and made a part of the record, which is done this eighth day of March, 1890.” Then follow, above the signature of the judge, these words : “ Signed with the understanding and consent on the part of the defendant, that it is subject to revision of Mr. Bodley (counsel for the respondent), and the insertion of such evidence as was introduced, and may be furnished to., the clerk, and will insert such changes and testimony as may be suggested by Mr. Bodley, and not objected to. This being the last day for filing and indorsement of bills, it is the only condition upon which I can sign.” Then follows the signature of the judge. Below and apparently on the bill of exceptions there is an indorsement as follows : “If attorney for plaintiff desires to embody anything in foregoing evidence of witnesses from shorthand reporter’s notes, before transcript is made out, he is at liberty to do so ; ” and this is signed by the counsel for the appellants. It appears from the record proper, that time had been allowed, after the lapse of the term in which to .prepare the bill of exceptions; and it is a fair inference from the above recital, that the bill of exceptions had been submitted to the judge by counsel for the appellants on the last day on which, under the order of the court, it could be signed, and before it had been examined by the counsel of the respondent; and that the judge had, out of deference to the rights of the respondent, signed it with the qualification, that the respondent should
The complaint, under which the defendants were brought before the recorder of the town of Kirkwood, was in the following language : “Charles D. Bennett, town marshal of said town, being duly sworn, says that John Gr. Cairns and Anna S. Cairns did violate an ordinance of the town of Kirkwood, being ordinance number 93, chapter 8, section 3, and chapter 10, section 6, in this, to-wit: In the town of Kirkwood at the county aforesaid, on the twentieth day of April, 1889, the said John Gr. Cairns and Anna S. Cairns did then and there violate ordinance in not removing within forty-eight hours a nuisance, in this, to-wit, a drain and sewer pipe, which was found, .under the proceedings provided in said ordinance, to be in a filthy condition and detrimental to the public health, which drain and sewer pipe ■empties into the public street known as Adams avenue, and did then and there violate chapter 10, section 6, in letting out slops and decayed matter into the said public street known as Adams avenue, contrary to the peace and dignity of the town and the ordinance in such ease made and provided.”
It was shown at the trial that the town of Kirkwood had power under its ordinances, “to remove and prevent nuisances,” and also “to erect and maintain hospitals, and to prevent the introduction of contagious and infectious diseases, and to secure the general health of the town.” An ordinance of the town of Kirkwood was also put in evidence, creating a board of health, to be composed of a committee of a board of trustees, and empowering such board of health to take all steps and use all measures necessary to promote the cleanliness and general
Another section of the same ordinance, also put in evidence at the trial, provided as follows : “ Whenever the board of health shall receive information that the condition of any house, cellar, yard, privy, sewer or drain, or any other place, is in a filthy condition and a nuisance or detrimental to the public health, it shall be their duty to summon the owner or occupant of the property, upon which said nuisance is said to exist, before the recorder of the town, to ascertain judicially if such is the case; and if, upon investigation, the charge is sustained, it shall be the duty of the property-owner, or party causing said nuisance, to have the same removed within forty-eight (48) hours, and in case of failure so to do he shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five ($5) nor more than twenty-five ($25) dollars.”
It was admitted at the trial that, prior to the fifing of the complaint, which is the foundation of this action, the preliminary steps required by this ordinance had been taken. The scope of this admission was, that the board of health had summoned the defendants before the recorder of the town to answer the charge of maintaining a nuisance on their premises ; that the recorder had, in that proceeding, ascertained judicially that the thing complained of by the board of health was a nuisance; and that he had .thereupon ordered the defendants to remove the same within forty-eight hours. It is perceived that the judgment, from which this appeal from the recorder to the circuit court was taken, was a j udgment in a subsequent proceeding, which was instituted before the recorder, under the ordinance, for
This brings us to the serious ground of complaint, which is that the judge, at the request of the plaintiff, gave to the jury the following instructions : “2. The court instructs the jury that, under the ordinances and the evidence produced, the finding of the recorder as to the existence of the nuisance as to chapter 8, section 3, on the sixteenth day of April, 1889, is prima, facie presumed, and, unless the jury believe that the evidence offered by the defendant is sufficient to overcome such presumption, they must find for the town in the present proceeding, and assess the damages in such sum, in the discretion of the jury, of from $5 to $25.”
In support of this instruction, counsel for the town of Kirkwood appeals to two decisions of this court: St. Louis v. Stern, 3 Mo. App. 48, and St. Louis v. Schnuckelberg, 7 Mo. App. 536. Counsel for the appellant rely upon these two cases in opposition to the instruction, with equal confidence. In St. Louis v. Stern, this court held that, where a nuisance-in a city is a nuisance per. se, that is a nuisance at common law — in that particular case a hog pen in the city of St. Louis — the action of the board of health of the city, within the scope of its granted powers, in condemning it as a nuisance, is conclusive upon the judicial court. The decision left open the question, whether such would be the case, or what would be the rule, where the thing complained of is not a nuisance at common law, or not a nuisance per se, but where it may become such according to particular circumstances, or according to the manner in which it is taken care of. In St. Louis v. Schnuckelberg this court held that, in respect of a nuisance of the latter class, that is in respect of an employment in a city — in the particular case a dairy in the city of St. Louis — which may or may not be a nuisance according to its surroundings and the manner in which it is conducted — the action of the board
Our attention has been called to the inartificial language of the instruction. It tells the jury that the finding of the recorder as to the existence of the nuisance is prima facie presumed, instead of telling them that, from the finding of the recorder, the nuisance is prima facie presumed. We nevertheless think that the jury would understand it in the sense in which it has been discussed, and in which' it was evidently intended, — that, from the finding of the recorder, they are prima facie to infer that a nuisance existed on the day named.
The objection made in the appellants’ supplemental brief, that the town assisted in causing the nuisance by failing to keep clean the gutters, may appeal to a different proposition of law. It may possibly address itself to the rule of law in respect to the non-performance of a ministerial duty, and not of a legislative discretion, by the town. Without conceding that the town is under any obligation to keep clean the gutters of its streets, for the purpose of carrying off sewage that may be wrongfully conducted into them, we have to say concerning this argument that it addresses itself to a question of fact, which, in the absence of any instructions on the subject, given or refused, we must regard as either not arising on the evidence, or else as properly disposed of by the jury in the court below.
In so far as the instructions on the question of the burden and quantum of proof are contradictory, the errors, if any, were in favor of the defendants.
The judgment is affirmed.