St. Louis, Iron Mountain & Southern Railway Company v. Pfau
| Decision Date | 19 May 1908 |
| Citation | 111 S.W. 10,212 Mo. 398 |
| Parties | ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. LENORE P. PFAU, Appellant |
| Court | Missouri Supreme Court |
Appeal from Lawrence Circuit Court. -- Hon. F. C. Johnston, Judge.
Reversed and remanded.
Henry Brumback and Joe J. Manlove for appellant.
(1) The report of the commissioners afforded no standard for measurement of damages by the jury, but defendant is entitled to a trial de novo by a jury uninfluenced by the opinion of the commissioners. Constitution of Missouri, art. 2, sec. 21; art. 12, sec. 4; R. S. 1899, sec. 1268; Railroad v Roberts, 187 Mo. 316; Wellington v. Railroad, 33 N. E. (Mass.) 393; Brown v. Railroad, 71 Mass 35. (2) The mere fact of filing written exceptions by defendant, superseded the report of the commissioners, and entitled defendant to trial de novo by jury, without any order of court to such effect. Constitution of Missouri, art 12, sec. 4; Railroad v. Miller, 106 Mo. 461; Railroad v. Elliott, 108 Mo. 322; Railroad v. Bates, 109 Mo. 53; Thompson v. Railroad, 110 Mo. 160; Rothan v. Railroad, 113 Mo. 142; Railroad v. McGrew, 113 Mo. 393; Railroad v. Story, 96 Mo. 620. (3) It was error to refuse defendant's instruction 5, which directs that, in estimating her damages, the jury shall pay no attention to or take into consideration in any way the award of the commissioners; and to give plaintiff's instructions 9 and 10, to the reverse effect, that such award must be shown by defendant to be inadequate and that their verdict should be for the difference between the award and any increased damages sustained by her. Constitution of Missouri, art. 12, sec. 4; Railroad v. Donovan, 149 Mo. 104; Railroad v. Russell, 150 Mo. 453; Railroad v. Roberts, 187 Mo. 309; Wellington v. Railroad, 33 N.E. 393, 158 Mass. 185. (4) Instruction 5, given for plaintiff, relating to depreciation of defendant's property from liability to fires, improperly contains the qualifications: "And you will not consider such element of damages at all, unless the buildings or other property are in proximity to the railroad," under the facts in evidence. Mathews v. Railroad, 121 Mo. 338; Railroad v. Mendonsa, 91 S.W. 65. (5) Instruction 7, given for plaintiff, wrongfully casts upon defendant to establish her damages by a preponderance of evidence. Bennett v. Woody, 137 Mo. 383. (6) The verdict is not responsive to the issue, and is insufficient to support the judgment entered. The sole question at issue, and submitted, is, how much defendant is entitled to be paid, while the verdict names no sum, but is a bare "find for plaintiff."
Martin L. Clardy and Edw. J. White for respondent.
(1) The trial court must set aside the award and sustain the exceptions before there is anything for a jury to try and "a new assessment by a jury can never be had, unless the court sustains the exceptions and so orders." Railroad v. Roberts, 187 Mo. 320; R. S. 1899, sec. 1268; State ex rel. v. Dearing, 173 Mo. 492; St. Louis v. Abelen, 170 Mo. 318; Railroad v. Richardson, 45 Mo. 466; Railroad v. Robinson, 45 Mo. 483; Railroad v. Ridge, 57 Mo. 599; Hannibal Bridge Co. v. Schaubacher, 49 Mo. 555; Miss. River Co. v. Ring, 58 Mo. 491; Railroad v. Alemoth, 62 Mo. 343; Cape Girardeau & C. Co. v. Dennis, 67 Mo. 438; Railroad v. Atchison, 137 Mo. 218; In re Opening of Cromwell Avenue, 181 N.Y. 549; Railroad v. Railroad, 99 Va. 715; Gage v. Judson, 111 F. 350; U. S. v. Freeman, 113 F. 350; In re Brookfield, 79 N.Y.S. 1022; Railroad v. Crossman Heirs, 111 La. Ann. 611; St. Louis v. Lanigan, 97 Mo. 175; Railroad v. Randolph, 103 Mo. 451. (2) As the award of the commissioners had never been set aside by the court, it was final and binding on both parties to this controversy in the trial court, but, in any event, on the admission of the defendant that she had received the amount of the award, it was competent to introduce it in evidence, so that plaintiff could receive credit for the payment which the record showed it was entitled to, for, "where there has been paid to the landowners the amount of the commissioners' award . . . . the judgment should not be for the entire amount of the verdict, but for the difference between the award and the verdict." Railroad v. Russell, 150 Mo. 453. (3) After admitting the award of the commissioners, the instructions given by the court were much more favorable than the defendant was entitled to, as they all assumed that the verdict would equal or exceed the amount of the award, and, as said by this court in Railroad v. Roberts (137 Mo. 322), "it assumes that the verdict will exceed the award of the commissioners and directs the form of the only verdict which the jury is to render, and that form does not contemplate that the verdict may be for a lesser sum, or even the same amount as the award of the commissioners" and because this theory of the case, together with the award in evidence, practically denied the railroad company the benefit of a less verdict than the award, it was held error against the railroad company, because denying it a substantial right in the case. (4) It is proper for the court to instruct the jury that, in assessing damages, they could not allow damages because of the danger to buildings from fire, unless the evidence shows that the buildings are near enough to the track to be likely to be destroyed by the sparks from passing trains; otherwise damages from such a source are too speculative to be considered. This was what plaintiff's instruction 5 told the jury. Conness v. Railroad, 193 Ill. 464. (5) The danger from fires as an element of compensatory damages is an extremely speculative element at best, and it is held, in this State, to be competent only as affecting the market value of the land, and defendant's instructions on this element of damage were far more favorable to her than the law allowed. R. S. 1899, sec. 1111; Railroad v. Mendonsa, 193 Mo. 525; Railroad v. Donovan, 149 Mo. 93; Railroad v. North, 31 Mo.App. 345. (6) Where the defendant landowner has assumed the right to open and close the case, both in the introduction of evidence and in the argument -- as the defendant did, in this case -- this court held that it was not error for the court to instruct the jury that the burden was on defendant to show damages to the land. Railroad v. Knapp, Stout & Co., 160 Mo. 396; Douglas v. Railroad (Ind.) 76 N.E. 892; Railroad v. North, 31 Mo.App. 351. (7) No objections can be urged, in this court, because the verdict of the jury was irregular, or was not responsive to the issues framed, because defendant filed no motion in arrest of judgment in the trial court. "An imperfect verdict or finding, or a neglect to find on all the issues, can be taken advantage of only by motion in arrest." Wells v. Adams, 88 Mo.App. 228; Finney v. State, 9 Mo. 636; Davidson v. Peck, 4 Mo. 445; Johnson v. Bedford, 90 Mo.App. 47; Erdbnuegger v. Meier, 14 Mo.App. 258; Warner v. Morin, 13 Mo. 455; 2 Ency. Pl. & Pr., 794, 795.
This action was instituted by plaintiff to condemn a right of way over the land of defendant in Lawrence county. The petition was filed December 31, 1903, against several landowners, including the defendant. It alleges, in substance, that plaintiff is a railroad corporation; that the White River Railway Company is a corporation, authorized to construct a railroad from Batesville, Arkansas, to Carthage, Missouri; that the latter company made and filed a profile map in the office of the clerk of the county court of Lawrence county, Missouri, and that, afterwards, said company transferred its franchise to plaintiff; that it needs for its right of way, etc., a strip of land fifty feet wide, being fifteen feet on the north side and thirty-five feet on the south side of the center line of the roadbed and track of the St. Louis, Iron Mountain and Southern Railway, said center line being described as follows, to-wit: "Beginning at a point on the west line of the north half of lot two of the southwest fractional quarter of section seven, at a point 213.1 feet south of the northeast corner, and running thence in an easterly direction a distance of 930 feet to a point 33 feet south of the line of the right of way of the St. Louis and San Francisco R. R. Company, said strip containing 1.06 acres, being in township 26, of range 25;" that the defendant, Lenore P. Pfau, is the owner of such land and is a non-resident, and that plaintiff has been unable to agree with her as to the price of such strip. The petition asks that commissioners be appointed to assess her damages.
The commissioners were appointed, and on January 28, 1904, they filed their report, awarding $ 808 to the defendant. Being notified of the filing of such report, the defendant, on February 5, 1904, filed her written exceptions thereto, stating that such award of the commissioners was inadequate compensation for her property taken and damaged by plaintiff, and asking that the report and award be set aside and her just compensation for the taking and damaging of her property by the plaintiff be ascertained by a jury.
Plaintiff filed reply to such written exceptions, "denying each and every allegation in said exceptions alleged."
Said strip of land condemned for plaintiff's right of way ran east and west across the north end of defendant's fifteen-acre tract, and contained about one and six-hundredths acres. Between the right of way and the extreme north end of said tract which bordered on the roadbed of the St. Louis and San Francisco Railroad was a strip seventy feet wide at one end and seventeen feet wide at the other. The land was inside the limits of the city of Aurora, distant a few blocks from the business center, and had been mined for lead and zinc for over fifteen years. ...
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