Arata v. Monsanto Chemical Co.

• Decision Date: 13 November 1961
• Docket Number: No. 1,No. 48554,48554,1
• Parties: Florence K. ARATA and Carmen V. Arata, Plaintiffs-Appellants, v. MONSANTO CHEMICAL COMPANY, a Corporation, Defendant-Respondent
• Court: Missouri Supreme Court

Page 717

351 S.W.2d 717

Florence K. ARATA and Carmen V. Arata, Plaintiffs-Appellants, v. MONSANTO CHEMICAL COMPANY, a Corporation, Defendant-Respondent.

No. 48554.

Supreme Court of Missouri, Division No. 1.

Nov. 13, 1961.

Motion for Rehearing or for Transfer to Court en Banc Denied

Dec. 11, 1961.

Carroll J. Donohue, Husch, Eppenberger, Donohue, Elson & Jones, St. Louis, for plaintiffs-appellants.

Coburn, Croft & Cook, Richmond C. Coburn, Alan C. Kohn, Edwin J. Putzell, Jr., St. Louis, for defendant-respondent.

HOLMAN, Commissioner.

In this action plaintiffs sought to recover from defendant actual and punitive damages in the total sum of $200,000. The defendant's motion to dismiss plaintiffs' amended petition was sustained and a judgment of dismissal was entered accordingly. Plaintiffs have duly appealed.

Plaintiffs alleged in their amended petition that they were the owners of certain land located in St. Louis County, Missouri; that defendant had acquired 152 acres of land on the east side of Lindbergh Boulevard and 100 acres on the west side thereof and had erected thereon certain offices, laboratories, and other buildings; that from and after 1953 defendant had repeatedly sought to purchase or lease all or a portion of plaintiffs' tract of land for use in connection with its operations in that vicinity; that defendant announced that it intended to build an overpass over Lindbergh Boulevard south of Olive Street Road for its convenience in the integration of its operations in that area; that negotiations for the purchase or lease of plaintiffs' property by defendant were not successful and said negotiations were terminated by defendant on April 14, 1957.

It was further alleged by plaintiff that 'thereafter, the State Highway Commission of the State of Missouri did file a petition for the condemnation of certain property in the Circuit Court of St. Louis County, Missouri, the alleged purpose of which condemnation was for the construction of a cloverleaf traffic exchange on U. S. Highway 66 and the relocation of Olive Street Road approximately eight hundred feet (800') south of its then intersection with the said Lindbergh Boulevard and which purpose was alleged to be public in nature but which purpose was solely to place said road at a point where it could serve as a convenient mode of ingress and egress for defendant and not for a public purpose. The said petition included the following described property owned by the plaintiffs [description omitted]; * * * that said condemnation was not for a public purpose but was for a private purpose, in that the condemnation was undertaken for the purpose and with the intention of facilitating and integrating the development of defendant, Monsanto Chemical Company, in the vicinity of Lindbergh Road and Olive Street Road by affording a large and convenient mode of ingress and egress to defendant's property. Plaintiffs further state that the facts concerning said road and its private use was not revealed to the court and that the said court, in ordering condemnation, had no knowledge or information of the actual purpose of the said condemnation. * * * That the defendant, through substantial private contributions of money and land for the acquisition of said land and the building of said road succeeded in having the State Highway Commission institute and process the said condemnation for the purpose of acquiring an overpass for the convenience of defendant's development in the vicinity of Lindbergh and Olive Street Roads, and that, after its failure to negotiate successfully a purchase or lease of plaintiffs' property for said purpose, it induced and instigated the said State Highway Commission to condemn plaintiffs' land for said purpose.' The petition concluded with allegations concerning plaintiffs' damages and a prayer for the aggregate amount heretofore stated.

Defendant's verified motion to dismiss is as follows: 'Comes now the defendant, Monsanto Chemical Company, and moves the court to dismiss the above-entitled cause for the reason that the plaintiffs' amended petition fails to state a claim upon which relief can be granted.

'Further, the defendant states that on or about the 15th day of April, 1958, the Missouri State Highway Commission filed an action in the Circuit Court of St. Louis County to obtain by condemnation title to a tract or tracts of land described on pages 3 and 4 of the plaintiffs' amended petition. That said cause was No. 222918 of the Circuit Court of the County of St. Louis, Missouri, and was entitled 'State of Missouri ex rel. State Highway Commission vs. Gorman et al.' That the plaintiffs, Florence K. Arata and Carmen V. Arata, as well as Oliver S. Arata, were named as defendants in said cause and as owners of said tract or tracts of land. That on May 15, 1958, a judgment of condemnation was entered in said cause. That on June 24, 1958, commissioners duly appointed in said cause filed a report fixing damages of plaintiffs and Oliver S. Arata for taking their said land at $86,000.00. That on July 1, 1958, the said Aratas filed exceptions to the commissioners' report, but on December 12, 1958, having reached a settlement of their dispute with the State Highway Commission, plaintiffs entered into a stipulation with the Missouri State Highway Commission for the entry of a judgment in their favor for the taking of said land in the amount of $96,000.00, which judgment was duly entered on that date and has been fully paid. That because of the foregoing the plaintiffs have been fully compensated for the taking of their land or for any alleged wrongful act complained of in plaintiffs' amended petition, and cannot lawfully obtain further or additional satisfaction from the defendant therefor.

'Further, the defendant says that in said aforementioned cause plaintiffs and Oliver S. Arata filed an answer on or about May 12, 1958, in which they denied that the aforesaid condemnation was for public purposes and alleged that it was for private purposes. That a judgment of condemnation was entered on May 15, 1958, by which the court found, among other things, that plaintiffs' property was being taken for public purposes. That on May 26, 1958, the Aratas filed a motion for new trial against said judgment. That on August 15, 1958, said motion for a new trial was overruled. That on August 21, 1958, a notice of appeal was filed by the Aratas to the Supreme Court of Missouri, but the said Aratas failed to perfect said appeal and on September 7, 1959, an order was entered in said cause dismissing said appeal for failure to comply with the rules of the Supreme Court of Missouri. That as a result, the judgment of May 15, 1958, entered in the aforesaid cause to which plaintiffs were parties, that their property was being taken for public purposes, became a final judgment binding upon plaintiffs. That as a result thereof said judgment that plaintiffs' property was being taken for public purposes is res adjudicata of said fact and binding upon plaintiffs in this cause of action and estops and precludes plaintiffs from asserting in this cause of action that their property was taken by the Missouri State Highway Commission and the defendant for private purposes, and that since plaintiffs' property was taken for public purposes, the act of the Missouri State Highway Commission in taking plaintiffs' property as aforesaid was a lawful act performed within its discretion, and cannot under any circumstances be the basis for any recovery by plaintiffs against defendant as the alleged instigator of said lawful act.'

Upon the hearing of the motion to dismiss defendant offered in evidence the court files in the condemnation case. Plaintiff objected upon the ground that 'the file hasn't been properly identified by a person so qualified to identify it.' The court indicated that it could take judicial notice thereof and overruled the objection. We will not give any detailed recital of the facts shown in the aforementioned files. It is sufficient to state that they contained proof of all of the facts alleged in defendant's motion.

As we view plaintiffs' petition it bases their right to recover upon the allegation (1) that defendant, through contributions of money and land, induced the State Highway Commission to condemn plaintiffs' land and (2) that said condemnation was not for a public purpose but was for the private purpose of providing an overpass for the convenience of defendant in the use of its lands and facilities in that vicinity.

At the outset of our consideration of the questions presented it should be noted that Section 28, Art. 1, Constitution of Missouri 1945, V.A.M.S., provides that 'private property shall not be taken for private use with or without compensation, unless [certain exceptions omitted]; and that when an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be judicially determined without regard to any legislative declaration that the use is public.' In considering the quoted provision we have recently stated that 'The distinction between 'public use' and 'public necessity' has been pointed out in the cases. The former is a judicial question, determinable by the courts; the latter is essentially...