School Dist. Phœnix Land & Improvement Co.

• Citation: 249 S.W. 51,297 Mo. 332
• Decision Date: 23 February 1923
• Docket Number: No. 23227.,23227.
• Parties: SCHOOL DIST. OF KANSAS CITY v. PHŒNIX & IMPROVEMENT CO.
• Court: United States State Supreme Court of Missouri

249 S.W. 51

297 Mo. 332

SCHOOL DIST. OF KANSAS CITY v. PHŒNIX & IMPROVEMENT CO.

No. 23227.

Supreme Court of Missouri, Division No. 2.

February 23, 1923.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

Condemnation proceedings by the School District of Kansas City against the Phoenix Land & Improvement Company. From a judgment rendered on verdict of a jury, defendant appeals. Reversed and remanded.

Cooper, Neel & Wright and Wallace Sutherland, all of Kansas City, for appellant.

Edwin C. Meservey, of Kansas City, for respondent.

Statement.

BAILEY, C.

This is a condemnation proceeding by plaintiff, the school district of Kansas City, Mo., to acquire a site for a high school in said city. The proceeding is under section 11143, R. S. 1919, which provides that the procedure is governed by the statute relating to the condemnation of land for railroad purposes. The plaintiff sought to condemn 53 separate lots of land in the "Highlands," a platted addition within the corporate limits of Kansas City, Mo. As originally platted, the addition consisted of 80 acres, which were by the plat subdivided into blocks, lots, and streets; the number of lots being approximately 430. The defendant is a Missouri corporation, engaged in the business of purchasing and subdividing large tracts of land and improving the same by building residences thereon for sale to home owners.

About 15 years before the institution of this suit, defendant purchased the 80 acres aforesaid, and built residences on about one-half of the residence lots and sold them. The school site embraces 53 of these lots, which are a part of 84 lots in on tract still owned by defendant, separated only by streets which were laid out and improved by appellant. Of the 53 lots condemned, 32 of them are in one block, and 21 in another block. Appellant owns none of the other lots in either of the two blocks aforesaid under condemnation; it having improved and sold 13, as separate lots, prior to the institution of this proceeding. Appellant owns a number of other lots in the same addition. Sixteen of these lots are in one block across the street and south of the land condemned, and 14 lots are across the street and west of the land condemned. There is also another lot fronting on Forty-Ninth street, a block south of the land condemned. The 84 lots still owned by defendant have never been offered for sale as lots. Appellant has its own architect and workmen; and at the time of the institution of this proceeding, its plans were completed to continue building upon and improving the entire tract, embracing 84 lots, the same as it had previously built upon the near and adjacent property, and in so doing it would utilize the rock and surplus dirt, thus carrying out and conforming to the original plan of improving and developing the entire addition as a whole, irrespective of lot lines or lot arrangement.

H. F. McElroy, Walter M. Knoop, and Ralph T. Edgar were appointed commissioners and reported the value of the property taken, at $41,950. No other element of damage was considered by the commissioners. Thereupon defendant demanded a jury trial, and the case was tried before a jury, which assessed the value of the land taken at $40,385.80, free and clear of all incumbrances and taxes. No other element of damage was considered by the jury. At the outset, the trial court held that the burden of proof rested upon the defendant landowner, and directed that it assume such burden and introduce its testimony before the plaintiff.

On May 21, 1921, the jury returned a verdict for $40,385.30, and judgment was entered June 3, 1921. Motions for a new trial and in arrest of judgment having been filed and overruled, the cause was duly appealed by defendant to this court.

Opinion.

I. It is contended by appellant that as laugh F. McElroy was one of the commissioners who assessed the damages sustained by defendant, he was an incompetent witness before the jury in this proceeding.

In St. Louis v. Abeln, 170 Mo. loc. cit. 326, 327, 70 S. W. 708, the Supreme Court had under consideration, in a condemnation suit, the question as to whether certain exceptions to the report of the commissioners in assessing damages should be sustained or set aside. On the rehearing of these exceptions in the circuit court, two of the above commissioners who joined in the report, over the objection of appellant in said cause, were permitted to testify as witnesses in behalf of plaintiff.

Judge Valiant, in passing upon this subject, said:

"We see no reason why the commissioners are not competent witnesses in such case. There is no statute disqualifying them, and no principle violated in allowing them to testify. The court in considering exceptions would often be in the dark as to the theory on which the commissioners proceeded if they were not examined as witnesses."

We are of the opinion that Mr. Elroy was a competent witness in this case, but the fact that he was one of the commissioners who had assessed the damages sustained by defendant should not have been permitted, either directly or indirectly, to go to the jury.

When the court awarded defendant a trial by jury as to the damages sustained by it, the report of the commissioners became functus officio, and the cause then stood as though no commissioners had ever been appointed. State ex rel. v. Fort, 180 Mo. loc. cit. 107, 108, 79 S. W. 167; Railroad v. Roberts, 187 Mo. loc. cit. 313, 320, 86 S. W. 91; Railroad v. Pfau, 212 Mo. 398, loc. cit. 407, 408, 111 S. W. 10; Ry. Co. v. Couch (Mo. Sup.) 187 S. W. loc. cit. 66; Railroad v. Second St. Imp. Co., 256 Mo. loc. cit. 421, 422, 160 S. W. 296. It is claimed by appellant that in the statement of the case by counsel for respondent, and in the testimony of Mr. McElroy, improper evidence was permitted to go to the jury in relation to the damages which the commissioners allowed defendant.

In considering this question, it is necessary to refer to that which occurred during the progress of the trial. In his statement to the jury one of plaintiff's counsel said:

"This court appointed three commissioners, without any suggestion as to the names of whom that board of commissioners should consist, without any suggestion on the part of the board of education, and, so far as I know, without any suggestion on the part of Mr. Cooper, my friend on the other side. The court appointed them on its own motion—appointed men of course, who had to be householders, disinterested men—appointed men who the court thought would go out and look at the property and make a fair report, just to everybody, and give their opinion, so far as they were able to determine upon an opinion, and file their sworn report in this court, of those values, and that was done. Those commissioners were Mr. McElroy

"Mr. Cooper (Interrupting): I object, if the court please, to any further statement by counsel with reference to the action of the commissioners.

"Mr. Ladd: I am not going to tell what they did.

"Mr. Cooper: Or even designate who they are, because it has been held by the Supreme Court of this state, explicitly, that this jury is to be uninfluenced in every respect.

"Mr. Ladd: It has been held that you cannot introduce the report, and I should not think of introducing it, but we can have them as witnesses.

"Mr. Cooper: I don't think so. So I object to anything further."

Mr. Ladd: in resuming his opening statement, said:

"That report of the commissioners was filed in this case. The defendant owner of this property was not satisfied

"Mr. Cooper (interrupting): I will have to object to that; it is immaterial. No difference whether they were satisfied or not, the law gives to you and to us the right to a jury trial. "Mr. Ladd: Yes, the defendant filed exceptions to the report, and asked for a jury. I don't want to state anything improper. (Resuming) After that report was filed, the Phœnix Land & Improvement Company, this corporation which owned this ground, asked the court to give them a jury trial upon this question of damages, a trial, before a jury of 12 men, filed the request in writing."

The court required the defendant to offer its evidence first, and after which the plaintiff, in its own behalf, offered as a witness Mr. Hugh F. McElroy, one of the commissioners heretofore mentioned, whose competency was objected to by counsel for defendant. Mr. McElroy, after giving the names of the associate commissioners, said they examined the property in question thoroughly, had a description of same and of the lots plaintiff sought to take. The following then occurred:

"Q. Did you, in good faith, try to arrive, as best you could, with the information you had, and from your viewing of the property, and all the surroundings, at a fair valuation of that property?

"Mr. Cooper: That is objected to as incompetent, irrelevant, and immaterial;, the witness is not a competent witness to testify to those facts, having been a commissioner in the case, and it is improper, as being an attempt to show by indirection what the law prohibits being shown...