Summary
In Allen v. Kraus, 358 Mo. 520, 215 S.W.2d 739, defendants contracted to move earth from one side to the other of the roof to an underground garage, and vice versa, so that the roof could be repaired.
Summary of this case from Kerr v. MilweeOpinion
No. 40812.
November 8, 1948. Motion for Rehearing or to Transfer to Banc Overruled, December 13, 1948.
1. CONTRACTS: Words and Phrases: Evidence: Meaning of "Stock Pile": Evidence of Custom Admissible. To "stock pile" earth temporarily removed from half of the roof of a garage and placed on the other half can mean to make a number of piles so as to distribute the weight. Evidence of a custom to such effect was admissible, whether or not such evidence was sufficient to establish such custom.
2. CONTRACTS: Negligence: Duty of Contractors to Use Ordinary Care. It was the duty of defendant contractors to use ordinary care in the performance of their contract.
3. CONTRACTS: Negligence: Stock Piling Earth on Garage Roof: Negligent Performance. There was a jury issue of negligent performance of the contract by stock piling so much earth on one part of the roof of plaintiff's garage as to cause the building to sink.
4. CONTRACTS: Negligence: Stock Piling Earth on Garage Roof: Instructions Not Erroneous. Plaintiff's instruction no. 1 was in accord with the contract and properly submitted the issues of negligence, proximate cause and damage. It did not give the jury a roving commission. And the jury was fully instructed on all of the defenses to which defendants were entitled under the law.
Appeal from Circuit Court of City of St. Louis. — Hon. Robert L. Aronson, Judge.
AFFIRMED.
Sullivan, Findley Lucas and Ralph T. Finley for appellants.
(1) There can be no actionable negligence in the absence of a duty or obligation of the defendants to protect the plaintiffs from injury, a failure to discharge such duty, and injury proximately resulting from such failure. Whelan v. St. Louis Soft Ball Assn., 356 Mo. 622, 202 S.W.2d 891; Cameron v. Small, 182 S.W.2d 565. (2) The work to be done under the written contract was to be performed upon an existing structure in possession and control of plaintiffs, and by their contract, the plaintiffs impliedly represented that the structure should continue in existence and in position and condition for the doing of the work. 9 C.J.S. 962-963, sec. 466 (2); Haynes v. Second Baptist Church, 88 Mo. 285, 292; Haynes v. Second Baptist Church, 12 Mo. App. 536; Beattie Mfg. Co. v. Heinz, 120 Mo. App. 465, 97 S.W. 188; United States v. Gibbons, 109 U.S. 200; Sandy Hites Co. v. State Highway Comm., 347 Mo. 954, 149 S.W.2d 828. (3) This rule is followed in other jurisdictions. United States v. Spearin, 248 U.S. 132; Penn Bridge Co. v. New Orleans, 222 F. 737; Wm. Miller Sons Co. v. Hospital Trustee, 243 Pa. 502; Canuso v. Philadelphia, 326 Pa. 302, 192 A. 133; Great Lakes Const. Co. v. Creosoting Co., 139 F.2d 456; Case Note, 53 A.L.R. 122. (4) Where the owner furnishes plans for work by a contractor, the contractor is not liable for defects or insufficiencies in the plan of work, or for defects resulting from the doing of the work, unless he assumes responsibility for such plans, and in this case defendants did not assume such responsibility or guarantee the safety of the plan of work. Sandy Hites Co. v. State Highway Comm., 347 Mo. 954, 149 S.W.2d 828; A.H. White Co. v. Burglass, 184 So. 225; Canuso v. Philadelphia, 326 Pa. 302, 192 A. 133. (5) The plaintiffs cannot establish a duty on the part of defendants to stock-pile evenly or distribute the weight of the earth on the south half of the garage roof by showing a custom or practice to pile earth evenly or distribute the weight thereof on the roof. The written contract authorized defendants to stock-pile the earth on the south half of the garage roof, without restriction as to depth of piling the earth or distributing the weight thereof, and no duty can be implied contrary to the terms of the contract. Sandy Hites Co. v. State Highway Comm., 347 Mo. 954, 149 S.W.2d 828. (6) No custom can be shown contrary to the terms of the contract or to change or vary the terms thereof, for to do so would be to make a new contract for the parties. State ex rel. v. Public Service Comm., 269 Mo. 63, 189 S.W. 377. Staroske v. Pulitzer Pub. Co., 235 Mo. 67, 138 S.W. 36; Kirkland v. Bixby, 282 Mo. 462, 222 S.W. 462; Jordan v. Daniels, 224 Mo. App. 749, 27 S.W.2d 1052. (7) The claimed custom was offered for the purpose of establishing a duty independent of the contract. In such case the custom must be pleaded explicitly, proved by evidence, and its existence submitted to the jury. None of these things was done. Martin v. Wabash Ry. Co., 325 Mo. 1107, 30 S.W.2d 735; Evans v. Santa Fe Ry. Co., 345 Mo. 147, 131 S.W.2d 604; Noyes-Norman Shoe Co. v. Cooper, 4 S.W.2d 486. (8) The evidence to establish the claimed custom, failing to show that the custom was definite, general, uniform, and certain, and applicable to a contract like that here involved, was wholly insufficient. Ehrlich v. Insurance Co., 103 Mo. 231, 15 S.W. 530; Porterfield v. American Surety Co., 201 Mo. App. 8, 210 S.W. 119; Leonard v. Dougherty, 221 Mo. App. 1056, 296 S.W. 263. (9) The plaintiffs cannot rely upon the theory of a negligent act, independent of the contract, because the petition attempts to state a cause of action for negligent breach of contract in the performance of said contract. Meade v. Railroad Co., 183 Mo. App. 353, 166 S.W. 1116; Hess v. Mfg. Co., 164 Mo. App. 153, 148 S.W. 179; Klingenberg Son v. Davis, 219 Mo. App. 1, 268 S.W. 99; 1 C.J. 1015, sec. 138. (10) Since the petition pleads and relies upon breach of contract, no recovery can be had on the theory of independent tort. Wernick v. Railroad, 131 Mo. App. 37, 109 S.W. 1028; Kohnle v. Paxton, 268 Mo. 463, 188 S.W. 155; Lathinen v. Continental Bldg. Co., 339 Mo. 438, 97 S.W.2d 102; 1 Am. Jur. 449, sec. 57. (11) Even in a case where a plaintiff may waive the contract and sue in tort, the defendant may set up a controlling contract as a defense. Brown v. Frisco, 135 Mo. App. 624, 117 S.W. 112. (12) The petition does not sufficiently plead a modification of the original contract. No facts are pleaded showing an agreement for such modification, nor is any consideration therefor pleaded or shown by the evidence. American Contracting Co. v. Norton, 253 S.W. 372; State ex rel. v. Shain, 338 Mo. 1208, 93 S.W.2d 992. (13) But if the modification was properly pleaded, plaintiffs, having failed to prove the purported modification (58-61), cannot recover on the original agreement. State ex rel. v. Bland, 353 Mo. 639, 183 S.W.2d 878. (14) The sinking of the garage roof and foundations, and the consequence damages to plaintiffs, resulted solely from defects in the plan. The defendants are not responsible for defects in the plan of work prescribed by plaintiffs and agreed upon in the contract. Sandy Hites Co. v. State Highway Comm., 347 Mo. 954, 149 S.W.2d 828; Wm. Miller Sons Co. v. Homeopathic Hospital, 243 Pa. 502, 90 A. 394 U.S. v. Spearin, 248 U.S. 132; Penn Bridge Co. v. New Orleans, 222 F. 737, 9 Am. Jur. 20, sec. 28; Case Note, 88 A.L.R. 797. (15) The plaintiffs were guilty of negligence as a matter of law in providing a defective plan of work. Furthermore, the plaintiffs were guilty of contributory negligence as a matter of law, because Mr. Allen knew at 5 P.M. on the day before the sinking the location and size of the pile of the earth and never objected to the manner of doing the work. Herring v. Franklin, 339 Mo. 571, 98 S.W.2d 619; Reynolds Co. v. Telephone Co., 152 Mo. 361, 133 S.W. 141; Farley v. Pettes, 5 Mo. App. 262; 38 Am. Jur. 879, sec. 199. (16) The plaintiffs being the owners and in possession of the garage were chargeable with any conditions with respect to the sufficiency of the foundations and roof of the garage which might cause damage under the contract, and are charged not only with facts actually known to them, but those which they had a conscious means of knowledge, including knowledge of the strength of the foundations, of the condition of their property, and provisions of the city ordinances with respect to the matters arising under the contract and work thereunder. McKeighan v. Kline's Inc., 339 Mo. 523, 98 S.W.2d 555; Summa v. Morgan Real Estate Co., 350 Mo. 205, 165 S.W.2d 390; Crane v. Liberty Foundry Co., 322 Mo. 592, 17 S.W.2d 945; Moore Mfg. Co. v. Railway Co., 256 Mo. 167, 165 S.W. 305; Hickman v. Union Electric Co., 226 S.W. 570; 39 Am. Jur. 238-240; 45 C.J. 653-655, sec. 27. (17) Where negligence is mutual, the plaintiff cannot recover. Hogan v. Citizens' Ry. Co., 150 Mo. 36, 51 S.W. 473; Zumwalt v. Railroads, 175 Mo. 288, 74 S.W. 1015; 45 C.J. 942-943, sec. 501; 38 Am. Jur. 866-867, sec. 190, note 15. (18) The evidence is insufficient to authorize a finding that the plaintiffs' damages were proximately caused by any negligence of the defendants. The sinking of the roof and the consequent damages resulted from the defective plan of work and the acts of the plaintiffs, as set forth for which defendants are not responsible. Giles v. Moundridge Milling Co., 351 Mo. 568, 173 S.W.2d 745; Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W.2d 924; 45 C.J. 930, sec. 490. (19) Plaintiffs' Instruction 1 does not submit any act of negligence amounting to wrongful performance of the contract, or the piling of the earth from more than the north half of the roof on the south half thereof, and what defendants are charged with doing under the theory of said instruction would be stock-piling as provided in the contract. Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W.2d 924. (20) The verdict, under all the evidence, could be based only upon speculation and conjecture as to the condition of the soil, the strength of the foundations, the amount of the weight on the footings, the conclusions of plaintiffs' expert witnesses based upon unproved inferences and assumptions, the amount of plaintiffs' damages, and as to any act of defendants as being the proximate cause of the said damages. McAnany v. Henrici, 238 Mo. 103, 114 S.W. 633; Ambruster v. Realty Inv. Co., 341 Mo. 364, 107 S.W.2d 74. (21) Plaintiffs' Instruction 1 erroneously fails to advise the jury as to the rights and obligations of the parties under the contract. Clark v. Railway Co., 64 Mo. 440; Harrison v. Franklin, 126 Mo. App. 366, 103 S.W. 585. (22) The said instruction has the effect of making a new contract for the parties. Staroske v. Pulitzer Pub. Co., 235 Mo. 67, 138 S.W. 36. (23) Said instruction is in conflict with defendants' Instruction 3 defining "pile" and "stock-pile" and in conflict with defendants' Instruction 4 with respect to non-liability of defendants if the roof would have sunk if the earth had been piled in accordance with plaintiffs' contentions. It is error to give conflicting instructions. McGrew v. Thompson, 353 Mo. 856, 184 S.W.2d 994; State ex rel. v. Shain, 341 Mo. 733, 108 S.W.2d 354. (24) Said Instruction 1 broadens the issues under the pleadings because it is based upon the theory of ordinary negligence, without reference to the contract, and the court having erroneously admitted testimony as to custom and practice of stockpiling the earth, under the instruction the jury were turned loose to consider such erroneous evidence as a fact and circumstance under plaintiffs' Instructions 1 and 2. No custom was pleaded or specifically submitted to the jury. Instructions must be within both the pleadings and evidence. State ex rel. v. Allen, 313 Mo. 384, 282 S.W. 46. (25) Said Instruction 1 gives the jury a roving commission to imply any duty which they might think right under the contract, or under an erroneous and unfounded custom and practice, regardless of the plaintiffs' duties and obligations under the contract, or of their obligations as owners of, and in possession of, the garage in question. Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853. (26) Said Instruction 1 directs a verdict for plaintiffs and ignores all defenses of defendants under the pleadings and evidence, except the defense that plaintiffs were guilty of contributory negligence, by which exception the instruction necessarily excluded any other defense under other instructions. An instruction should not ignore issues and defenses, particularly where it excludes such defenses. Griffith v. Meat Products Co., 347 Mo. 28, 145 S.W.2d 431. (27) Said Instruction 1 is erroneous because the clause telling the jury that if defendants "negligently removed a large amount of earth from the north part of the garage and negligently" piled it on the south end of the garage, the plaintiffs could recover, is plainly misleading, and also unsupported by the evidence. (28) The court erred in refusing defendants' offered Instruction E. Said instruction is the only instruction offered defining or declaring the duties of the parties under the issues in the case It is neither abstract nor misleading under the evidence and the issues in the case. Leimkuehler v. Wessendorf, 323 Mo. 64, 18 S.W.2d 445; Foulkes v. Fleming, 322 Mo. 718, 17 S.W.2d 511; Beattie Mfg. Co. v. Heinz, 120 Mo. App. 465, 97 S.W. 188; 64 C.J. 789-790, sec. 647; Barree v. Cape Girardeau, 132 Mo. App. 182, 112 S.W. 724. (29) The court erred in admitting evidence as to custom or practice to pile the earth so as to distribute the weight on the roof. 22 C.J. 928, sec. 1131; Buhrkuhl v. Construction Co., 232 Mo. App. 967, 95 S.W.2d 843; Worthington Dr. Dist. v. Elm Twp., 339 Mo. 270, 96 S.W.2d 374; Reid v. Ins. Co., 58 Mo. 421; Fruin v. Crystal Ry. Co., 89 Mo. 397; Maher v. Coal Coke Co., 323 Mo. 799, 20 S.W.2d 888. (30) The verdict for plaintiffs on defendants' counterclaim is unsupported by the evidence and is contrary to the law under the evidence. The contract was frustrated by the fault of plaintiffs, and when the garage sank the work could not be done under the contract, giving defendants a right to sue on quantum meruit for what they had one. 9 Am. Jur. 46, sec. 64; 9 Am. Jur. 55-56, sec. 85.
Oscar E. Buder and Eugene H. Buder for respondents.
(1) The defendants owed the plaintiffs the duty of ordinary care to protect the plaintiffs' property from injury in performing the work; they failed to carry out that duty; and injury to plaintiffs' property was the proximate result. Flannery v. St. Louis Architectural Iron Co., 194 Mo. App. 555, 185 S.W. 760; Swabey v. Boyers, 274 Mo. 332, 203 S.W. 204; Curators of Central College v. Rose, 182 S.W.2d 145, appeal dismissed 323 U.S. 678, 65 S.Ct. 269, 89 L.Ed. 550; State ex rel. St. Louis v. Laclede Gas Light Co., 102 Mo. 472, 14 S.W. 974, 22 Am. St. Rep. 789; 38 Am. Jur. 662, sec. 20. (2) One who contracts to make repairs and performs the work in an unskillful or negligent manner is liable for the damage proximately resulting from improper performance, and which can be regarded as having been within the contemplation of the parties. Arkansas Machine Boiler Works v. Moorhead, 136 Ark. 18, 205 S.W. 980, 1 A.L.R. 1652; Case Note, 1 A.L.R. 1654; Case Note, 44 A.L.R. 824. (3) The written contract authorized defendants to stockpile the earth on the south half of the garage roof, but the contract by implication provided that the stockpiling should be done with ordinary care, and such implication was of course in no sense contradictory of the express terms of the contract. Authorities under Point (1) above; Defendants' Instruction 3. (4) The showing of custom as evidence of the applicable standard of care was highly proper, and was no contradiction of the express terms of the contract. Asbury v. Fidelity Natl. Bank Trust Co., 231 Mo. App. 437, 100 S.W.2d 946; Brunke v. Missouri Tel. Co., 115 Mo. App. 36, 90 S.W. 753; Gordon v. Kansas City So. Ry. Co., 222 Mo. 516, 121 S.W. 80; Tuttle v. Kline's, Inc., 230 Mo. App. 230, 89 S.W.2d 676; 2 Wigmore on Evidence, sec. 461, p. 489. (5) Custom shown for such evidentiary purpose need not be pleaded, nor its existence as such submitted to the jury. Asbury v. Fidelity Natl. Bank Trust Co., 231 Mo. App. 437, 100 S.W.2d 946; Caldwell v. Payne, 246 S.W. 312; Brunke v. Missouri Tel. Co., 115 Mo. App. 36, 90 S.W. 753; Texas P.R. Co. v. Behymer, 189 U.S. 468, 23 S.Ct. 622, 47 L.Ed. 905. (6) Apart from such evidence of custom, the jury was to use its own judgment of what men of ordinary prudence would do in the circumstances, and it must have been clear to them that it is prudent when stockpiling on a collapsible structure to make a more or less even distribution rather than to make a huge pile on a small part of the surface. Cameron v. Small, 182 S.W.2d 565; Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485. (7) The petition pleads both breach of contract and negligence, and plaintiffs went to the jury solely on the theory of negligence, in the relation made by the contract, allowing all defenses derivative from the contract. 38 Am. Jur. 661, sec. 20; Tullgren v. Amoskeag Mfg. Co., 82 N.H. 268, 133 A. 4, 46 A.L.R. 380. (8) Where there is a breach of contract amounting also to negligence, plaintiffs may sue in tort, at least where the negligence complained of is active misfeasance, as it was in this case. Lahtinen v. Continental Bldg. Co., 339 Mo. 438, 97 S.W.2d 102; Case Note, 12 L.R.A. (N.S.) 925. (9) The petition does not attempt to plead a modification of the contract, but does plead the practical construction placed on the contract by the parties, evidence of which would have been admissible, but was not forthcoming. Laclede Construction Co. v. T.J. Moss Tie Co., 185 Mo. 25, 84 S.W. 76; St. Louis Gaslight Co. v. St. Louis, 46 Mo. 121. (10) Even if the plan of work was defective, and such defective plan was the proximate cause of the damage, still defendants were liable therefor. Defendants received no representation from plaintiffs that the garage roof would hold up without shoring, and even if the roof would have failed had defendants used ordinary care in piling the earth without shoring, still defendants were liable, as a matter of law, for not having discovered the necessity of shoring and not having shored up the roof even if they had finished their work before the failure occurred. Day v. United States, 245 U.S. 159, 38 S.Ct. 57, 62 L.Ed. 219; MacArthur Bros. Co. v. United States, 285 U.S. 6, 42 S.Ct. 225, 66 L.Ed. 433; Webb-Boone Paving Co. v. State Highway Comm., 351 Mo. 922, 173 S.W.2d 580; United States v. Spearin, 248 U.S. 132, 39 S.Ct. 59, 63 L.Ed. 166; Simpson v. United States, 172 U.S. 372, 19 S.Ct. 222, 43 L.Ed. 482; Davis' Admr. v. Smith, 15 Mo. 467; Ramsay G. Construction Co. v. Vincennes Bridge Co., 50 F.2d 600. (11) And especially since the failure occurred shortly after they had begun their work. Case Note, 88 A.L.R. 797, 803, subd. IV; Stees v. Leonard, 20 Minn. 494, 20 Gil. 448. (12) Assuming a defective plan of work, even if defendants were not liable for the resulting damage as a matter of law, still they were liable under the undisputed evidence of a custom among contractors to determine the feasibility of a general plan of work submitted to them. Beattie Mfg. Co. v. Heinz, 120 Mo. App. 465, 97 S.W. 188; Bebb v. Jordan, 111 Wn. 73, 189 P. 553, 9 A.L.R. 1035. (13) Plaintiffs were guilty of no contributory negligence. The plan of work was safe, but even if it was unsafe, it was the duty of defendants, and not plaintiffs, to have so discovered. Crawford v. Kansas City Stockyards Co., 215 Mo. 394, 114 S.W. 1057; Langan v. St. Louis, I.M. S. Ry. Co., 72 Mo. 392; Willig v. C.B. Q. Ry. Co., 345 Mo. 705, 137 S.W.2d 430. (14) Plaintiff Allen was not negligent in not having objected to the work done as he saw it at five o'clock P.M. on the day before the sinking. 39 Am. Jur. 238-240, sec. 12. (15) Even if Allen was negligent in such manner, the instruction hypothesizing such negligence which was offered by defendants was properly refused, and the objection to such refusal has been abandoned on this appeal, since it is not raised in appellants' points or argument. Majors v. Malone, 339 Mo. 1118, 100 S.W.2d 300. (16) Nor has the point of Allen's alleged contributory negligence been preserved for review on this appeal by defendants' motion for a directed verdict or by defendants' motion for a new trial. Clay v. Owen, 338 Mo. 1061, 93 S.W.2d 914; Greer v. Carpenter, 323 Mo. 878, 19 S.W.2d 1046; Raifeisen v. Young, 183 Mo. App. 508, 167 S.W. 648; Fruit Supply Co. v. C.B. Q.R. Co., 119 S.W.2d 1010. (17) Plaintiffs are not chargeable with expert knowledge of the structural strength of their building to hold up under extraordinary loads, which strength could have been determined only by an engineer, architect, or construction contractor. DeBolt v. Kansas City, Ft. S. M. Ry. Co., 123 Mo. 496, 27 S.W. 575; Springfield Crystallized Egg Co. v. Springfield Ice Refrigerating Co., 259 Mo. 664, 168 S.W. 772. (18) There is no reversible error in plaintiffs' Instruction 1. Said instruction directs a verdict for plaintiffs on their cause of action only on the theory of the negligent piling of a large amount of earth on a narrow strip at the south end of the garage roof, and only if such negligence, if found, was the proximate cause of the damage, and only if plaintiffs were free of contributory negligence. It is not erroneous for omitting reference to defendants' contrary theories of the proximate cause, which were presented in other instructions. Coshow v. Otey, 222 S.W. 804; Lawbaugh v. McDonald Mining Co., 202 S.W. 617; Meadows v. Pacific Mut. Life Ins. Co. of California, 129 Mo. 76, 31 S.W. 578; Bricker v. City of Troy, 315 Mo. 353, 287 S.W. 341. (19) Said instruction, by also requiring a finding that by their negligent piling defendants "greatly overloaded that portion of the garage roof on which they had piled such earth," does not rewrite the contract for the parties, because such required finding is tantamount to a finding of negligence, or is in addition to a finding of negligence, and ordinary care is required by the contract as construed by Instruction 3. Such language could only have made the submission unduly burdensome to plaintiffs. Raber v. Kansas City Rys. Co., 204 S.W. 739; Cameron v. Small, 182 S.W.2d 565. (20) Said instruction is not in conflict with defendants' Instruction 3. Authorities, Point (18), above. (21) A party may not be heard to complain of conflict between his own erroneous instruction and a proper one given on behalf of the adversary. Reardon v. Mo. Pac. Ry. Co., 114 Mo. 384, 21 S.W. 731; Hall v. Mo. Pac. Ry. Co., 219 Mo. 553, 118 S.W. 56. (22) Said Instruction 1 is not erroneous for containing the hypothetical clause that defendants "negligently removed a large amount of earth from the north part of the roof of the garage." It could only have made the submission unduly burdensome to plaintiffs. Raber v. Kansas City Rys. Co., 204 S.W. 739; Cameron v. Small, 182 S.W.2d 565. (23) The court did not err in refusing defendants' offered Instruction E. Said instruction is erroneous. Crane v. Liberty Foundry Co., 322 Mo. 592, 17 S.W.2d 945. (24) Once the court had given Instruction 4, which directed a verdict for defendants if the plan of work was found defective, Instruction E, abstract to begin with, became wholly superfluous, in that the substance of it had already been given in a more forceful form. It is not necessary to repeat an instruction already given. Coshow v. Otey, 222 S.W. 804. (25) The court did not err in admitting evidence by plaintiffs' witnesses, Walter J. Simon and Neal J. Campbell, as to the custom of piling the earth so as to distribute the weight on the roof. Authorities under Point (4) above. (26) The verdict for plaintiffs on defendants' counterclaim follows automatically from the verdict for plaintiffs on plaintiffs' petition.
Plaintiffs obtained a judgment against defendants in the sum of $12,086 for an alleged breach of contract. Failing to obtain a new trial defendants appealed.
Plaintiffs are the owners of an apartment building and an underground garage located on the northwest corner of Laclede Avenue and Buckingham Court in St. Louis, Missouri. The roof of the garage, made of concrete and covered with approximately eighteen inches of earth, was 180 feet long and 90 feet wide. Water was seeping through and the owners desired to have it repaired and made water-proof. They engaged the St. Clair Roofing Company to make the repairs, which company was represented by Mr. Walter J. Simon in all the matters concerning this lawsuit. It was necessary to remove the earth from the roof [740] for which purpose Mr. Simon entered into negotiations with defendants, who were engaged in that kind of work. Defendants submitted a bid in the form of a letter, which bid was accepted by Mr. Simon on behalf of the Roofing Company and plaintiffs. By this bid, prepared by the defendants, they agreed to remove the earth, and quoting from the bid, ". . . uncover approximately one half of the surface, stock pile the earth on the other half. Allow you to perform your work on the half uncovered then replace the earth on this half. Uncover the final half, stock pile over the completed portion, allow you to complete your work, then replace the final portion."
Defendants undertook to do the work, but after removing a considerable amount of earth from one side of the roof and placing it on the other side, the building sank at the point where the earth had been piled. Plaintiffs claim that the cost of repairing the damage was $17,729.02. The jury, by its verdict, fixed plaintiffs' damages at $12,086. The basis of plaintiffs' claim was, that defendants negligently piled too much earth over a small area thus overloading the capacity of the building causing it to sink at that point. Plaintiffs claim the earth should have been piled over a much wider area thereby distributing the load. There was a sharp dispute in the evidence as to the amount of earth placed over the area where the building sank. Plaintiffs' witnesses estimated the depth of the earth to have been eight to fifteen feet. Defendants' witnesses testified it was not piled higher than four or five feet. There was evidence to the effect that if the earth had been piled no higher than four or five feet, or if the load had been distributed over a wider area, no damage would have resulted. The jury, by its verdict, found against defendants on these questions of fact and we are not authorized to disturb that finding.
Defendants, however, claim that plaintiffs have no cause of action against them. This claim is based on the theory that the work was done as the contract provided it should be done; also, that the owners of the building, plaintiffs, and the roof contractor furnished the plans for the work and since it was done according to plan the owners have no recourse for the resulting damage. Many authorities are cited by appellants in support of this theory, but, we need not discuss or consider them because for the purpose of this case we may concede that to be the law. It is plaintiffs' theory that the work was not performed with ordinary skill and care. In other words, that defendants were required to exercise ordinary care and that in this they failed and therefore are responsible for the resulting damage.
Defendants insist that under the contract they were permitted to place all of the earth taken from one-half of the roof and heap it in one pile on the other half; that the word "stock-pile," as used in the contract, meant just that. It is insisted that plaintiffs, by their plan to repair one-half of the roof at one time while the earth from that half was piled on the other half, gave assurance to the contractor that the building would not sink under the load even if the earth was all heaped in one pile. That is defendants' interpretation of the meaning of the word "stock-pile," as used in the contract. It is plaintiffs' contention that defendants were negligent in placing so much earth within a small area. They also contend that it was the custom in such cases to distribute the load more evenly over the entire surface. Evidence was introduced that the roof would have carried the load easily if it had been distributed. Plaintiffs also offered some evidence that it was the custom in such cases to distribute the load and not place all of the earth within one small area. Defendants assigned as error the ruling of the trial court in admitting such evidence. In deciding this question we must keep in mind that defendants prepared the contract and the word "stock-pile" was their way of expressing what was to be done with the earth. Defendants say "stock-pile," as used in the contract, authorized them "to stock-pile the earth in a pile or heap, to collect in a mass, to cover with heaps or in great abundance." We find the word "stock-pile" in Webster's New International Dictionary, Second Edition, defined to mean, "to heap up; to accumulate in piles." If defendants had made a number of piles and thereby distributed the load over a larger area it would still have been stock-piling; and had the work been done in that manner it would [741] not have been inconsistent with the written contract. We deem the evidence of custom in such circumstances to be competent. 45 C.J. 706, Sec. 87; 38 Am. Jur. 661, Sec. 20; Asbury v. Fid. Nat. Bank Trust Co., 231 Mo. App. 437, 100 S.W.2d 946, l.c. 949 (5). If it was the custom in such cases to distribute the load over a large area of the roof, then plaintiffs and Simon, who entered into the contract, were justified in assuming that defendants would distribute the load over a wider area than was done.
Defendants, however, argue that the evidence was insufficient to establish any custom as to the manner of doing their work. We hold that to be immaterial in this case. We also hold that if defendants had piled the earth in a number of smaller heaps the work would have been performed according to contract.
This brings us down to the simple question of whether defendants, under their contract and the nature of the work, were required to use ordinary care in the performance of their contract. We are of the opinion that under the law defendants were required to exercise ordinary care. 45 C.J. 883, Sec. 318; 38 Am. Jur. 661, Sec. 20; Flannery v. St. Louis Architectural Iron Co., 194 Mo. App. 555, 185 S.W. 760, l.c. 761 (1, 2).
We are now confronted with the final question of liability. Did the evidence justify a finding that defendants were negligent in heaping so much earth within a small area? We think so. The roof was 90 feet wide and 180 feet long. Defendants knew that the roof covered a garage and that it must necessarily have been supported by pillars. It seems but common sense that the question of whether the capacity of the supports would be suffifficient to carry such a large load would suggest itself to a man, exercising ordinary care and prudence, who had had experience in that line of work. No contention is made by defendants that the earth could not have been piled over a much wider area. On the contrary there was evidence that this could have been done. In such circumstances it was a case for a jury to decide.
Appellants urge that instruction number one, given at plaintiffs' request, was erroneous. We have examined the many complaints leveled against the instruction. A majority of the points briefed are based on the theory of non-liability which we have considered and decided adversely to defendants' contention. Most of defendants' points are based on the meaning of the word "stock-pile." Note one of their objections to instruction number one:
"The said instruction has the effect of making a new contract for the parties, that is to say, a contract to stock-pile the earth on the south half of the garage at such a height and at such a place as to `not greatly overload' the portion of the roof upon which the earth was piled instead of a written contract for stockpiling the earth on one-half of the roof, and then on the other half, without restrictions as to the height of the pile or piles, or the distribution of the weight thereof on the roof."
We are unable to agree with that theory. What we have previously said disposes of this point. Again, appellant says that instruction number one gave the jury a roving commission to find for plaintiffs regardless of defendants' duties and obligations under the contract. Instruction number one in substance authorized a verdict for plaintiffs if the jury found that defendants removed a large amount of earth from the north side of the roof and negligently piled it on a narrow strip at the south end thereof, and that in the exercise of ordinary care they should have foreseen that such piling would damage the building. The question of defendants' negligence, proximate cause and damage were all submitted in instruction number one. We find that the instruction required the jury to find specific facts before a verdict was authorized. It certainly did not give the jury a roving commission.
Instructions given at defendants' request authorized a verdict for defendants if the jury found that the building would have been damaged even if the weight and load had been spread over a wider area. The jury was also instructed to find for defendants if the footings of the foundation of the building were such that the building would have been damaged even if the load had been spread evenly. Contributory negligence [742] on part of plaintiffs was also submitted as a defense. We find that the jury was fully instructed on all of the defenses to which the defendants were entitled under the law.
We have considered the points briefed and find that the trial court protected the defendants' rights by its rulings and also by the instructions given. The verdict of the jury in such circumstances is binding on appellate courts. The judgment is affirmed. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.