Gibson v. Zimmerman

Philips, P. J. The trial court erred in sustaining the demurrer to the evidence. The rule of practice in this respect was stated by us in Boone v. Railroad (20 Mo. App. 235), “where the plaintiff has made out a prima facie case, although the defendant may intro — 97 — duce evidence which entirely overthrows and disproves the prima facie case of the plaintiff, the trial court cannot say, as matter of law, that it is so overthrown,, and direct a verdict for the defendant. The credibility of the witnesses, and the weight Of the evidence, are peculiarly matters for the jury. The plaintiff is entitled to have the judgment of the jury on the credibility of the witnesses produced by the defendant, and the value of their testimony. See cases cited. The tax certificates of the engineer made out a prima facie case, as to the facts and liabilities stated in them, and presented a valid claim, till rebutted by countervailing evidence.” Neenan v. Smith, 60 Mo. 294; Acts, 1865, p. 435, sect. 5; Buchan v. Broadwell, 88 Mo. 36. Clearly, then, when the plaintiff rested he had made out aprima facie case, and the burden of proof then shifted to the defendant to overcome this by countervailing proof. The trial judge was of this opinion, as he refused to give the instructions offered by defendant, in the nature of a demurrer to the evidence. Respondent seeks to escape this apparent blunder, by suggesting that the answer alleged that no grade had been established, by ordinance, prior to the ordinance authorizing this work, and that the plaintiff, in effect, admitted this fact by his reply, by relying upon an ordinance adopted subsequent to the issuance of the tax certificates. This is not tenable. The reply tendered, first, the general issue. This put in issue the allegation of the answer, that there was no prior ordinance. The reply then proceeds to state that this grade was reestablished by the ordinance of 1884. So far from being inconsistent with the general denial, it was an affirmation of its truth. There could be no reestablishment of a grade where one had not been established hitherto. It is likewise a misconception of the rules of pleading to contend, as does the respondent, that because the plaintiff had not affirmatively asserted in — 98 — Ms reply the existence of a prior authoritative ordinance, he was precluded from giving evidence of its existence. The pleader is not required to allege a fact not essential, in the first instance, to his right of recovery. The tax bills implied that every prerequisite step to the imposition of the tax had been properly taken. The existence of the ordinance, if one was necessary, was included within the terms of the averments respecting the issuance of the tax bills. The burden rested on the defendant to show the non-existence of the ordinance, as claimed in his answer. It would be anomalous that, while the defendant was searching through the municipal archives and introducing witnesses to disprove the existence of such an ordinance, the plaintiff, when the defendant rested, should be precluded from proving there was such an ordinance. 'II. As the cause is to be remanded, and a further-trial must turn measurably upon the answer the law makes thereto, we should now determine the question as to whether or not it be essential to plaintiff’s recovery, that the grade of the street in question should have been established by ordinance prior to ordering the macadamizing. The authority for defendant’s contention must be found in the charter of the city, and ordinances passed in pursuance thereof. I fail to find in the charter any provision which, in direct terms, makes such requirements a prerequisite to an ordinance providing for the work of improvement. The charter confers upon the mayor and councilmen the “power to establish a general plan and graduation of streets, etc.” Charter, sect. '49. The city may, if it so desires, establish such grades, but it is not made obligatory to incur the expense of grading, or establishing a grade on every street and alley within its limits. We see nothing in this to prevent the city from electing to let the natural grade of any particular street stand. So the charter simply • confers upon the mayor and councilmen the power to macadamize, etc., any street. — 99 — It nowhere declares that this power shall be exercised only npon such streets where the city has previously established, by ordinance, a grade. Section four of the amended charter (Laws, 1865, p. 435), provides that, “whenever the mayor and city council shall order the paving, macadamizing, etc., of any street within the limits of the city, the cost of the same shall be paid by the owners of the property in the vicinity,” etc. Respondent seeks for the inhibition for which he contends, in section 49 of the charter, which provides, “that when any street, etc., in said city, has heretofore been located or fixed, or when the grade thereof has been heretofore fixed or established, and the same shall be altered or changed by the city authorities, any person owning real estate bordering upon, or adjoining, such street, etc., shall have the right to sue and recover from said city all damages he may sustain by reason of such change or alteration.” We do not discover in this language anything which necessarily implies that no street can be ordered macadamized unless there has been a grade established thereon, by ordinance. The argument, or contention, of respondent is, that unless such grade has been so established, the property owner, who has been taxed with the improvement, would be without recourse for damages against the city, resulting from a subsequent alteration of the grade on which the improvement was placed. I do not think such result would ensue. There are two parts, or two provisions, in this clause. The first provides for the alteration or change made in any street, etc., “heretofore located or fixed,” and the second for the alteration or change of any grade “heretofore fixed or established.” In either case, the real estate owner shall have his right of action for, any damage consequent upon such alteration or change. If, after thus authorizing the work of macadamizing on this street, at the expense of the adjacent property owners, the city, by ordinance, should have this macadam torn up, and the street lowered or raised, this, in my — 100 — opinion, would be such change or alteration in the street, as heretofore located and fixed by the city, as would entitle the person injured to maintain action against the city. And, certainly, where it has, as in this case, ratified the grade by subsequent ordinance, it would be estopped, as against the private citizen affected by the alteration, from asserting the absence of an antecedent ordinance, establishing the grade. City to use v. Armstrong, 56 Mo. 298; Brown v. Mayor, 63 N. Y. 239; New Orleans v. Clark, 95 U. S. 644. This state of case, and such a ratification and estoppel, are clearly distinguishable from the line of cases cited by respondent, which pertain to the instance of such improvements being undertaken, without the passage of an ordinance, in due form, authorizing the work. In such case, under a charter like this, the contractor would have no right to subject the property of the private citizen to the payment of the tax, nor would he have any recourse on the city; nor could the city, by subsequent ordinance, so ratify the act as to give the contractor the right of action. Thomson v. City of Boonville, 61 Mo. 282; Perkinson v. City of St. Louis, 4 Mo. App. 322; Newman v. City of Emporia, 32 Kas. 456; Zottman v. San Francisco, 20 Cal. 97; Reis v. Graff, 51 Cal. 86. But that is not this question. Here the necessary ordinance was adopted by the city, authorizing this work. The charter conferred the power on the city to make such improvements, at the expense of the private property owner. And when the contractor found the power conferred in the charter, and that the ordinance had been passed pursuant to this power, authorizing the letting of the contract on a street “ located and fixed” within the city limits, I do not believe he should be required to produce an anterior ordinance of the city, establishing a definite grade on the street, before, he can get pay for his work. The defendant seeks to avoid the assessment against — 101 — Ms property by going further than any adjudication has yet gone, so far as I am able to discover, by assuming that such improvement can be ordered by the city only on such streets as have the grade formally established by ordinance. What I hold, in this case, is, that where the city, by regular ordinance, has authorized the improvement of one of its, located and fixed streets, and especially where it has, both by such ordinance and subsequent ordinance, recognized the street and the macadam on the fixed grade, as iri this case, the city would be estopped, as against this defendant, in any antion he might bring against it for altering this street or grade by tearing up this macadam; and that in this action, now pending, it is not essential to the plaintiff’s right of recovery that he should show the existence of a previous ordinance establishing a grade for this street. The judgment of-the circuit court should be reversed. With the concurrence of the other judges, it is so ordered, and the cause is remanded for further proceeding in conformity herewith. ,