Corrigan v. Kansas City

SMITH, P. J. The petition alleged in substance that while the plaintiffs were erecting a number of buildings on a certain lot owned by them, situate on the west side of Holmes street between Twenty-fifth and Twenty-sixth streets in defendant city, the surface water collected in said Holmes street in front of plaintiff’s lot and from there ran upon said lot of plaintiffs, and against said buildings and thereby injured the same — depriving plaintiffs of the use thereof and delaying them in completing said buildings, etc. It was therein further alleged that the injuries to said lot and buildings were directly caused by the negligence of the defendant, setting forth with great particularity the facts constituting such negligence. The answer was a general denial. There was a trial before the court, a jury being dispensed with, resulting in judgment for plaintiffs. At the conclusion of all the evidence, the defendant interposed a demurrer to it, which was by the court denied. There were no instructions requested or given. The defendant appealed. I. Although the defendant assigns as error the action of the court in denying its demurrer to the evidence, yet in [176] neither its brief nor argument is there any reference to that assignment. It is to be inferred that the assignment is not really relied on for a reversal, but, if so, we may say that an examination of the evidence has not convinced us that it should be sustained. II. The defendant further objects that no damages should have been allowed for the injuries to the plaintiffs’ buildings because they were built after all the street improvements had been made, or in other words, such damage should have been confined to the lot on which the buildings were erected. But it seems from the record that the attention of the trial court was not called to this contention either by objections to evidence or by instructions, or in any other way, so that it can not be now noticed by us. Besides, it amounts to no more than a suggestion that the finding was excessive, but if so, on turning to the motion for a new trial, we do not find that it was made one of the grounds thereof, and, therefore, no difference what is embraced in the contention, it is not subject to review here. Schmitz v. Railroad, 119 Mo. 256; Minton v. Steele, 125 Mo. loc. cit. 196; Ridenhour v. Railroad, 102 Mo. 290. And the same remark is equally applicable to the contention that it was the duty of plaintiffs to have used all reasonable exertions to protect themselves and avoid, as far as practicable, the injurious consequences of which they complain. Whether or not the court, in determining the case, considered it on any such theory, we, of course, have no means of ascertaining, but for aught that does appear in the record, we may presume that it did so. If the defendant desired a consideration of the case on the theory embraced in this contention, it should have requested a declaration of law to that effect. In a trial by the court without the aid of a jury, in an action at law, the only way its errors can be reviewed and corrected if it decides the law wrongly or makes a misapplication of it to the facts, is to ask declarations of law so that the reviewing [177] court may see on what theory the trial court proceeded. Wheeler v. McDonald, 77 Mo. App. 215. And these remarks are applicable to the other points of objection referred to in the defendant’s brief. III. Defendant complains of the action of the court in permitting the plaintiffs to read in evidence ordinance No. 42611, but in examining the record we can not find that this ordinance was one of those to which the defendant interposed an objection in the trial court, so its complaint as to that ground can not be considered here. IY. The defendant objects that the court erred in not sustaining its motion to strike out the plaintiffs’ amended petition, but this motion is not preserved in the record, so that the action of the court in respect to it is not before us for review ; but if such motion hadbeen preserved, the plight of the defendant would not be different, because it appears after it was overruled it pleaded over, and thereby waived its objection. Y. Some objection is taken by the motion for a new trial to the finding of the court, but it is a sufficient answer to that to say that in this, as in all other actions at law when the case has been tried by the court without a jury, the finding will not be reviewed by us when there is any substantial evidence to support it. The facts must be assumed to be as found by the court. The finding must be regarded as conclusive on us. Rice v. Arnold, 58 Mo. App. 97, and eases there cited. The judgment seems to be for the right party and must be affirmed. All concur.