In re Proceedings to Open Sixth Street; Kansas City
| Decision Date | 19 December 1918 |
| Parties | In re Proceedings to Open Sixth Street; KANSAS CITY v. MAX MORRIS et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. William O. Thomas, Judge.
Reversed and remanded.
Robert E. Rooney for appellant, Max Morris.
(1) The court erred in giving instruction G-35. City of Kansas v Hill, 80 Mo. 536; City of Kansas v. Baird, 98 Mo. 218; Hull v. City of St. Louis, 138 Mo. 618. (2) The award of the jury to this appellant is grossly inadequate, confiscatory and sweeps away a material part of his life's earnings. Met. St. Ry. Co. v. Walsh, 197 Mo. 420; In re Fordham Road, 74 N. J. App. 343.
Frank F. Brumback for appellant, John I. Glover.
(1) The court erred in refusing to give the instruction asked by this appellant to allow this appellant his proper measure of damages for his land taken, to his manifest injury, because it appears from the evidence that if the proper measure of damages had been applied this appellant would have recovered as the value of his property taken much more than the amount allowed by the jury. Charter of Kansas City, sec. 3, art. 6; Charter, sec. 7, art. 7; Jefferson City v. Wells, 263 Mo. 231.
Cooper Neel & Wright, J. W. Dana for appellants, T. M. James & Sons China Co.
(1) The court erred in giving instruction G-38. City of Kansas v Hill, 80 Mo. 536; City of Kansas v. Baird, 98 Mo. 218; Rosentreter v. Brady, 63 Mo.App. 403; Metropolitan Street Ry. Co. v. Walsh, 197 Mo. 421. (2) The court erred in giving instruction G-35. Chicago etc., Ry. Co. v. McGrew, 104 Mo. 291; Kansas City, etc. Ry. Co. v. Dawley, 50 Mo.App. 487. (3) The verdict should be set aside because there is no award in favor of the owner of Tract 18, to-wit, T. M. James & Sons China Company. Schmeltzer v. Furniture Co., 252 Mo. 18; Adams v. Gassom, 228 Mo. 577; McCord, Admr. v. McCord, 77 Mo. 166; R. S. 1909, sec. 2097. (4) The award of the jury to this appellant is grossly inadequate, confiscatory and unreasonably low, for which reasons a new trial should be granted. Grand Rapids Co. v. Weiden, 38 N.W. 295; Adkins v. Smith County Auditor, 64 N.W. 761; Lenhart v. State, 77 N.Y.S. 398; In re Fordham Railroad, 77 N.Y.S. 567; In re Met. El. Ry. Co., 27 N.Y.S. 758; Metropolitan St. Ry. Co. v. Walsh, 197 Mo. 420. (5) The court erred in excluding the testimony of Mr. J. C. James: (a) As to the value of the use of the building during the period necessary for interruption by reason of having to move; (b) as to the cost of moving the business, and (c) as to the necessary loss of business by reason of having to move. Constitution of Missouri, art. 2, secs. 21, 30; U. S. Constitution, 5th and 14th Amendments; Chicago Ry. Co. v. McGrew, 104 Mo. 282; St. Louis v. Abeln, 170 Mo. 326; Bridge Co. v. Schaubacher, 57 Mo. 582; St. Louis v. Brown, 155 Mo. 545; Railroad v. Brick Co., 198 Mo. 698; Railroad v. Second Street Imp. Co., 256 Mo. 386.
E. M. Harber, City Counselor, J. C. Petherbridge, Assistant City Counselor, for respondent, Kansas City.
(1) The instructions complained of were not erroneous. Kansas City v. Butterfield, 89 Mo. 646; Restetsky v. Railroad, 106 Mo.App. 386; St. Louis v. Ranken, 95 Mo. 189. All of the instructions should be taken and considered as a whole, and the verdict sustained, if possible. Pounds v. Coburn, 210 Mo. 115; Brod v. Transit Co., 115 Mo.App. 214; Rigsby v. Oil Co., 130 Mo.App. 137; Clack v. Supply Co., 72 Mo.App. 506; Senn v. Southern Ry. Co., 135 Mo. 512; Dougherty v. Mo. Pac. Ry. Co., 97 Mo. 647. If the qualification of the instruction complained of appears elsewhere in a form fairly bringing it to the attention of the jury as a modification of the other, the judgment will not, on that account, be reversed. Schroeder v. Michel, 98 Mo. 48. Erroneous instructions may be corrected by supplying deficiences or omissions, if the appellate court is satisfied that the complaining party was not prejudiced thereby. Chambers v. Chester, 172 Mo. 461; Grace v. St. Louis R. R. Co., 156 Mo. 295; Gamache v. Piquignot, 17 Mo. 310; Holladay-Klotz Land & Lumber Co. v. Markham, 96 Mo.App. 51; Haver v. Schwyhart, 48 Mo.App. 50. An erroneous instruction is harmless where the verdict is right. State ex rel. v. Stone, 111 Mo.App. 364; Carr v. Railway, 195 Mo. 214; Petersen v. Transit Co., 199 Mo. 331; Coleman v. Reynolds, 207 Mo. 463. (2) There was no error in giving Instruction G-35. See Instruction G-16 given at the request of Mr. James, covering his property. The two are in perfect harmony. Instruction G-35 was correct and has been approved by this court. St. Louis Ry. Co. v. Knapp-Stout Co., 160 Mo. 408; St. Louis v. Buggy Co., 266 Mo. 704. (3) The award to appellants for their lands was all, and perhaps much more, than they could have gotten at a private sale. In fact, property in this vicinity has been declining in value for fifteen years, as shown by the evidence, and there is no market for it. (4) The evidence as to the value of the property taken or damaged was only advisory to the jury. The jury viewed and inspected the property and were in a better position than this court, or any witness, to determine the just compensation to be paid for it. It cannot be said that the verdict is contrary to their judgment after hearing the evidence and viewing the premises taken. (5) The court correctly instructed the jury as to the measure of damages. Ry. Co. v. Real Estate Co., 204 Mo. 565.
Sebree, Conrad & Sebree for respondent, J. Fred Butler.
(1) The court did not err in the giving of instruction G-38. (1) When said instruction is read as a whole the jury is clearly directed that they may act upon their own knowledge and judgment in connection with the evidence, and while the testimony of witnesses is advisory only, it is not binding or conclusive upon the jury, and they may, if the character of testimony warrants, disregard the same. Kansas City Charter, sec. 3, art. 6; St. Louis & St. Joe Ry. Co. v. Richardson, 45 Mo. 468; Hull v. City of St. Louis, 138 Mo. 618. (2) The instructions in the case when read as a whole show that the jury was not misled by any uncertainty in any individual instruction. Liese v. Meyer, 143 Mo. 560; Dutcher v. Railroad, 241 Mo. 172; Davidson v. Railroad, 164 Mo.App. 720. (3) Issues not affecting substantial rights should be disregarded. R. S. 1909, sec. 1850. (2) Instruction G-35 properly declares the law. Neither the peculiar value of property to the owners or claimants, nor the city's desire for the same determines the value of the property. Such is not the proper measure of damage. (3) The award of the jury as to the T. M. James & Sons China Company is not grossly inadequate and confiscatory, but reasonable and proper, and it is without right in law to complain thereof. Perkins v. State, 113 N.Y. 660. The jury in this case was composed of freeholders, who, under the charter viewed and inspected the premises. Therefore, adjudications as to the adequacy of verdicts assessed by common-law juries are not applicable. The rule of law governing a freehold jury is that the verdict as to assessment of damages must not be disturbed unless the court is clearly satisfied that the jury erred in the principle upon which they have made their appraisal. St. Louis v. Lanigan, 97 Mo. 178; Ry. Co. v. Richardson, 45 Mo. 466; St. Louis v. Calhoun, 222 Mo. 55, 56; In re Metropolitan Elevated Ry. Co., 27 N.Y.S. 756. (4) The court did not err in excluding testimony of Tract 18 belonging to T. M. James & Sons China Company as to the value of the use of the buildings during the period of necessary interruption by reason of having to move, as to the cost of moving the business, and as to the necessary loss of business by reason of having to move. Railroad v. Schweitzer, 173 Mo.App. 657; St. Louis v. Railroad, 266 Mo. 694.
John G. Park for respondents, A. B. C. Fireproof Warehouse Co. et al.
(1) The only disputes were upon matters of opinion as to damages and values. Instructions will be interpreted in the light of the issues. Tranbarger v. Railroad, 250 Mo. 59; Riley v. Independence, 258 Mo. 684. Instructions G-1 and G-38 must be taken together. Harrington v. Sedalia, 98 Mo. 589; Wellman v. St. Ry. Co., 219 Mo. 151. It will be assumed that the jury did read them together. Patterson v. Evans, 254 Mo. 304; Hoover v. Mining Co., 160 Mo.App. 331. No necessity for repeating in Instruction G-38 that which had been stated in G-1. Benton v. St. Louis, 248 Mo. 112; Strickler v. Printing Co., 249 Mo. 620. The opinions of the witnesses were merely advisory and not binding on the jury. Cosgrove v. Leonard, 134 Mo. 419; Taussig v. Railway, 166 Mo. 33; MacDonald v. Railroad, 219 Mo. 481; Hull v. St. Louis, 138 Mo. 628; Hoyberg v. Henske, 153 Mo. 76; State v. Stapp, 246 Mo. 338; Johnson v. Kahn, 97 Mo.App. 631; Smith v. Tel. Co., 113 Mo.App. 444; City of Kansas v. Street, 36 Mo.App. 668; Com. Co. v. Aaron, 145 Mo.App. 318; Poumeroule v. Cable Co., 167 Mo.App. 538; Patterson v. Traction Co., 178 Mo.App. 259; Shipman v. Ins. Co., 187 Mo.App. 406. (2) Instruction G-35 is in the exact form prescribed by controlling decision of this court. St. L., K. & N.W. Ry. v. Knapp-Stout & Co., 160 Mo. 408; St. Louis v. Railroad, 266 Mo. 701, 704. (3) Errors, if any, were harmless. R. S. 1909, secs. 1850, 2082. The award was sufficient. (4) Loss of use of building, cost of removal and loss of building properly excluded. St. L., K. & N.W. Ry. Co. v. Knapp-Stout & Co., 160 Mo. 412; St. Louis v. Railway, 266 Mo. 701. (5) Neither illegal nor unconstitutional to instruct jury that opinions of expert witnesses are merely advisory. Head v. Hargrave, 105 U.S. 45, 26 L.Ed. 1028.
Ingraham Guthrie & Durham for respondents, George W. Mageath, Thos. J. Pendergast, The Wiel Co., M. L. Turner and ...
To continue reading
Request your trial