Steffen v. Fox

Rombauer, P. J. — Tbe action is one upon a special tax bill for constructing a granitoid sidewalk in front of tbe property of tbe defendants on che north•east corner of Eighth and Market streets in tbe city of [10] St. Louis. The petition sets out the various ordinances of the city under which the work was done, the completion of the work and the issuance of the-special tax bill to the plaintiff. . The substantial defense made by the answer is-that the work done was illegal and void, because done-in contravention of an ordinance of the city providing-among other things: “Hereafter no. sidewalk shall be constructed, the-cross-grade of which, or rise from the curb line, shall be greater than one-half inch vertical rise to one foot-horizontal distance; and in each instance the curb-line shall be maintained at its correct elevation above-the city directrix, which shall be determined from the-construction of the particular street in question.” The ordinance also provides that the violation of the-ordinance by any one shall be a misdemeanor, punishable by fine. The trial of the cause by the court without the intervention of a jury resulted in a judgment for plaintiff. The defendants appeal, and assign for error-the action of the court in refusing to nonsuit the plaintiff, as requested, and the giving of .erroneous declarations of law by the court on its own motion. As the declarations of the law given by the court show the-theory of the law applied by the court to the evidence, which is the only object of such declarations where a, cause is tried by the court, they will be fully set out. hereinafter. On the trial there was evidence tending to show that there was a difference between the grade of Eighth street and that of Market street, at the point of their intersection at this corner, of five and one-half inches; that owing to this difference it was impossible to comply literally with the provisions of the ordinance above set out, unless a jog or set-off were constructed run [11] ning from the apex of the curb at the intersection of' the two streets to the apex of the building line on the-corner of the two streets; that, in order to avoid such a jog or set-off (the danger of which to passengers along the sidewalk seems imminent), the plaintiff, under the direction of the city inspector, constructed the fan-shaped portion of the sidewalk at the corner with a grade several inches in excess of that permitted by the ordinance. The evidence tended to show that the-residue of the sidewalk was constructed in strict conformity with the provisions of the ordinance. There-was also evidence tending to show that the construction of the sidewalk in the manner in which it was-constructed was the nearest practicable approach to the requirements of the ordinance, in case the sidewalk was to consist of a continuous plane without-any jog or set-off, and that neither the value of the sidewalk as such, nor the danger to pedestrians using-it, was materially affected by this slight variation in the grade. At the request of the defendants the court first, declared that there was no evidence before it to show that it was a physical impossibility to construct 'the-sidewalk in question in conformity with the requirements of the ordinance, or to show that the requirements of the ordinance were unreasonable. However, to the other declarations of law asked by fhe defendants, which announced, in substance, that, unless the-sidewalk was constructed in conformity with the provisions of the ordinance, the plaintiff could not recover,, the court added the following qualifications: “Unless the court shall further find from the evi--' denee that the established grade of Market street and. Eighth street, at their intersection, where the pavement in question was to be constructed, was such that-such pavement could not be made to conform strictly to> [12] the provisions of said ordinance number 11558 without making such pavement unsafe and inconvenient to the general public having occasion to use the same. “And if the court shall further find from the evidence that, owing to the inequality of the established grade of said streets (if the evidence shows such inequality to exist), it was found impracticable and inexpedient to lay and construct said pavement at the intersection of said streets, and immediately north thereof, in strict conformity with the literal provisions of said ordinance number 11558, and that plaintiff thereupon called upon the city official having charge and supervision of said work, and thereafter followed the directions of said official in the construction of said pavement, and that the same is not by reason of any deviation from the literal provisions of said ordinance number 11558, less valuable to the defendants’ property, nor less convenient, safe and passable for public use, then the plaintiff is entitled to recover.” While' the evidence is conflicting touching the value of the sidewalk as constructed, compared with a sidewalk constructed in literal compliance with the ordinance, there is substantial evidence supporting the finding of the court that the sidewalk, as constructed, was not less valuable to the owner, nor less safe and convenient to the traveling public, than the sidewalk would have been if constructed in literal compliance with the ordinance. If the plaintiff’s witnesses are to be credited, a sidewalk constructed in literal compliance with the ordinance would have created a dangerous nuisance on a much frequented thoroughfare. Such being the case, the law as declared by the court is not subject to any just exception. A substantial ■compliance with the law is essential as a foundation of the plaintiff’s right of recovery in these cases, but a literal compliance has never been deemed essential for [13] that purpose. The latter, at most, affects the extent, and not the right of recovery. City of St. Joseph v. Anthony, 30 Mo. 537; Sheehan v. Owen, 82 Mo. 458. As was very aptly said by Judge Black in Cole v. Skrainka, 105 Mo. 303: “This court has never adopted the extreme view that, in order to recover for these local improvements, the plaintiff must show a literal compliance with all the provisions of the ordinances. Distinction must be made between those matters which affect the substantial' rights of the pa'rties and those which are formal and directory.” The cases cited by appellant in no way militate against this position. In Keane v. Cushing, 15 Mo. App. 96, and Keane v. Klausman, 21 Mo. App. 488, the work was done before any ordinance authorizing it was passed. In Bourke v. City of Kansas, 34 Mo. App. 579, the work was completed strictly in conformity with the directions of the ordinance, and the only point for decision was whether the engineer .could bind the city in misdirecting the 'performance of the work, by which the contractor was subjected to additional outlays and which admittedly could not be charged against the adjoining property. With the concurrence of Judge Biggs the judgment is affirmed. As Judge Bond, who dissents, is of opinion that the decision is opposed to the cases cited in his dissenting opinion, the case will be certified to-the supreme court for final adjudication. So ordered.