Heman Construction Co. v. O'Brien , 81 Mo. App. 639 ( 1899 )

BIGGS, J.

This is an action on a special tax bill for repairs on a sidewalk in front of premises owned by defendants and situated in the city of St. Louis. The bill was issued to plaintiff’s assignor who did the work, and the defendants were named in the tax bill as owners of the property. The repairs were made in July, 1896. The defenses were (1) that in August, 1895, notice was given to defendants by the street commissioner of the city, that á certain portion of the sidewalk, to wit, fifteen feet (15 ft.) to the full width of the walk was out of repair and requiring the defendant to make the necessary repairs; that immediately upon receipt of the notice the defendants advised the street commissioner of their intention to make the repairs, and that within the time prescribed they did put the sidewalk in perfect condition, and that eleven months thereafter, to wit, July, 1896, the street commissioner, without further notice to defendants, ordered the plaintiff’s assignor, the general contractor with the city for street repairs, to repair the walk, for which the tax bill in question was issued, and (2) that the walk was repaired by the contractor in excess of that required by the notice, that is twenty-two feet and two inches of the sidewalk to its full width was entirely reconstructed with new materials, instead of fifteen feet as required in the notice, and that eight feet and one inch additional were repaired with old materials. The reply put in issue the new matter contained in the answer. The cause was submitted to the court without a jury and the findings and judgment were for the defendant. The plaintiff has appealed, and complains of the admission of incompetent testimony and that the evidence introduced by defendants was insufficient to establish their defenses.

The defendants introduced substantial evidence tending to prove the facts set forth in their answer. The circuit court permitted John O’Brien, one of the owners of the property who had the sidewalk repaired and inspected the work, to state to the court that the sidewalk was left in good condition. Objection was made to this statement of the witness. The general rule is that a witness must state facts, and not- his opinions or conclusion, but there are exceptions to the rule. If the facts and circumstances connected with the ultimate fact to be proved can not be definitely and intelligibly'"stated so as to enable any one, except upon personal inspection, to form an accurate opinion, a witness who has bad tbe means of personal observation may give bis opinion. Eyerman v. Sheehan, 52 Mo. 221; White v. Stoner, 18 Mo. App. 540; Haymaker v. Adams, 61 Mo. App. 581; Kendall v. Bain, 46 Mo. App. 581. A man of ordinary intelligence is capable of knowing and judging of tbe condition of a sidewalk, and as it was somewhat difficult to convey to tbe mind of the trier of the fact a clear idea of tbe subject, it was not error to allow O’Brien to state to the court that.in bis opinion the sidewalk wias properly repaired.

There was no dispute as to the tax bill. It was read in evidence, and it named the defendants as owners. It made a prima facie case for plaintiff. Moberly v. Hogan, 131 Mo. 19. At the conclusion of defendants’ evidence the plaintiff asked tbe,circuit court to find tbe issues against itbe defendants upon tbe ground that the defendants had failed to prove that tbe repairs were made to the satisfaction of the street commissioner. It is undisputed that the defendants notified tbe street department that they would do the work; that they commenced it within tbe prescribed time, and diligently prosecuted it to completion. Heman v. Land Improvement Co., 75 Mo. App. 372. The defendants were not required to notify the street commissioner of tbe completion of tbe work, or to show that it was done to bis satisfaction, hence this assignment of error must likewise be overruled.

With the concurrence of tbe other judges the judgment of tbe circuit court will be affirmed. It is so ordered.