St. Louis, Oak Hill & Carondelet Railway Co. v. Fowler
| Decision Date | 23 February 1898 |
| Parties | St. Louis, Oak Hill and Carondelet Railway Company v. Fowler et al.; Rothan, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.
Affirmed.
David Goldsmith for appellant.
(1) The trial court erred in receiving in evidence the tax returns made by defendant Rothan. 2 Wharton on Ev. [3 Ed.], sec 1199; 1 Greenl. on Ev. [15 Ed.], sec. 176; The New Orleans 106 U.S. 13; McLellan v. Cox, 36 Me. 95; Dean v. Ross, 105 Cal. 231; Prewett v. Coopward, 30 Miss. 389; Thompson v. Thompson, 13 Ohio St. 360; McMillan v. McDill, 110 Ill. 51, 52; Dale's Appeal, 57 Conn. 140; Shailer v. Bumstedt, 99 Mass. 130; O'Connor v. Madison, 98 Mich. 190, 191; Livingston's Appeal, 63 Conn. 76; Nussear v. Arnold, 13 S. & R. 323; Clark v. Morrison, 25 Pa. St. 453; Blakely v. Blakely, 33 Ala. 617; Forney v. Ferrell, 4 W.Va. 739; La Bau v. Vanderbilt, 3 Redf. (N. Y.) 408. (2) The trial court erred in receiving in evidence the deeds offered in contradiction of Mr. Gehner's testimony. Rose v. Taunton, 119 Mass. 99. (3) The restrictions placed by the trial court upon the cross-examination of the witness Rutledge were erroneous. Pierce v. City of Boston, 41 N.E. 229. (4) The giving of the instruction numbered 1 was erroneous in that it warranted deductions for switching facilities or otherwise as special benefits, and in that it did not restrict the amount thereof to increased values existing at the date of the filing of the report of the commissioners. There was no evidence whatsoever of any special benefits other than switching facilities, and in regard to these the evidence was inadequate because it failed to show any obligation on the part of plaintiff to permit the construction of switches. Drury v. Railroad, 127 Mass. 585; Railroad v. Miller, 125 Mass. 1; Hook v. Railroad, 133 Mo. 321; Railroad v. Stock Yards, 120 Mo. 542. (5) Instruction number 2, given by the court, was erroneous in that it permitted of the consideration of general benefits. Railroad v. Fowler, 113 Mo. 470; Railroad v. McDonald, 12 Heisk. 54; Oloe Co. v. Haye, 19 Neb. 292.
Martin L. Clardy and Henry G. Herbel for respondent.
(1) There can be no doubt about the competency of tax returns in cases of this character as tending to prove the value of the land. Railroad v. Smith, 7 So. Rep. 634; President, Etc. v. Juniata Co., 22 A. 896; Reiser v. Portere, 63 N.W. 1041; Probst v. Ins. Co., 64 Mo.App. 412; Bogie v. Nolan, 96 Mo. 91; Peck v. Williams, 113 Ind. 256; Hurst v. Robinson, 13 Mo. 83; Armstrong v. Farrar, 8 Mo. 627; Richmond v. Cross, 12 Mo. 77; Allen v. Allen, 26 Mo. 331; Jackson v. Harding, 83 Mo. 186; Price v. Town of Breckenridge, 92 Mo. 384; St. Louis Paint Co. v. Mepham, 30 Mo.App. 24; Campbell v. Gas Light Co., 84 Mo. 352; Young v. McDow, 87 Mo. 197; Robidoux v. Cassilleggi, 10 Mo.App. 516; Warfield v. Lindell, 38 Mo. 561; Beck v. Kollmeyer, 42 Mo.App. 271. (2) The point made by defendants on the introduction of the Stein deeds is clearly without merit. The purpose of their introduction was, as stated by counsel for plaintiff, to impeach the testimony given by Mr. Gehner. (3) Counsel, we think, was granted a very liberal latitude in the cross-examination of Rutledge, but when they sought to introduce such collateral issues as the cost of improvements, viz., sewers, grading, guttering, paving, tree planting, sodding, etc., on another piece of ground, in order that the jury might by some intricate process of reasoning guess the value of the land in its virgin state, we think it was time for us to object and the court to sustain the objection. (4) The criticism of plaintiff's first instruction is extremely hypercritical. R. S. 1889, sec. 2623. (5) The objection made by the defendants to the second instruction given for plaintiff to the effect that the jury may have considered general benefits, is pointless in view of the repeated rulings of the trial court excluding evidence of such benefits, and of the other instructions, with which this one must necessarily have been considered, which expressly excluded such general benefits. (6) According to the refused instruction, defendants would have been entitled to interest on the money deposited with the clerk of the court, which they have refused and still refuse to take. Railroad v. Fowler, 113 Mo. 458; Railroad v. Clark, 119 Mo. 357.
David Goldsmith for appellant in reply.
(1) Several pages of appellant's brief are devoted to the general proposition that the admissions of a party are competent as against him. This is elemental law. Next, the argument is made that the admissions of a person are competent as to all who have a joint interest with him. That we have no idea of disputing. But the relations of the defendants are admitted to be those of tenants in common and not joint tenants, and, as shown by the authorities cited in our main brief, the declarations of one tenant in common are not competent against his cotenant. Greenl. on Ev. [15 Ed.], sec. 176. (2) The following adjudications sufficiently establish that, in regard to matters of taxation, one tenant in common has no implied authority to bind his cotenant as agent. Reed v. Crapo, 127 Mass. 39; Thurston v. Miller, 10 R. I. 358; Howze v. Dew, 90 Ala. 178. (3) The fact that one piece of land had been graded, sewered, etc., does not prevent it from being a proper criterion of the value of other land similarly situated, but not thus improved; for the deduction of the expenses of the improvement will put both parcels on the same basis. Pierce v. Boston, 41 N.E. 229; Uneacke v. Railroad, 67 Wis. 108; Railroad v. Clark, 120 Mo. 188.
This is a proceeding by the plaintiff, a railway company, to condemn for right of way a strip of land through a twenty-four acre tract belonging to defendants, situate within the limits of St. Louis.
The proceedings were commenced in 1886. Commissioners were appointed, who awarded to defendants $ 2,580 damages. On exceptions thereto, filed in the circuit court, a trial by jury was had and the damages were assessed at $ 11,541.20. On appeal to this court the judgment was reversed. On a re-trial by a jury the damages were assessed at $ 3,850, and defendants appeal. During the trial the following stipulation was made by the parties: Evidence was offered by defendants tending to prove the damages sustained, and by plaintiff tending to prove that the remainder of the tract would be specially benefited by the railroad. Exceptions were saved to the admission and rejection of evidence, and to the giving and refusing of instructions. The questions for decision will be stated in the opinion.
I. It is first insisted that the court committed error in permitting plaintiff to introduce in evidence an assessment list made by defendant Rothan on July 11, 1887, in which he values the land at $ 10,000. It appears that the court admitted the evidence as an admission of Rothan, and as affecting his interest alone. Counsel for the other defendant does not controvert the well recognized rule of evidence that admissions and declarations of a party, made against his interest, may be given in evidence against him, and agrees that if Rothan was the sole defendant there would have been no error in the admission of the evidence; but it is argued that the admission of one tenant in common is not receivable as evidence against his cotenant, though both are parties to the same suit, and the evidence, when admitted, necessarily affected the rights of the other defendant, for the reason that the parties had stipulated that the jury should assess the same amount of damages to each of the cotenants.
We do not consider it necessary to determine the question, whether the admissions of Rothan were receivable as evidence against his cotenant. There can be no doubt that they were competent as evidence against the party making them, and we do not think such effect should be given to the stipulation as would prevent the introduction of any evidence tending to reduce the damage of either party, which would be otherwise competent. Without the stipulation the evidence was admissible against Rothan. When the defendants agreed that the damage to each of them should be the same, they agreed in effect that the jury should disregard the respective interests of the parties, and find the damage done to the land and divide it between the defendants, thereby making the rights of the cotenants joint, and for the purposes of the suit, inseparable. It is well settled law, at least in this State, that if parties prove a joint interest in the matter in suit, whether as plaintiffs or defendants, an admission by one is, in general, evidence against all. Armstrong v Farrar, 8 Mo. 627; Hurst v. Robinson, 13 Mo. 82. The legal effect of the stipulation is that each party waived all objection to evidence which was admissible against the other. The parties placed themselves in the position of joint owners in respect to the damages to be assessed, and on the trial should not be permitted to shift their position, and claim as tenants...
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