Accomac Realty Co. v. City of St. Louis

• Decision Date: 10 June 1941
• Docket Number: 37380
• Parties: Accomac Realty Company, Appellant, v. City of St. Louis and State Highway Commission
• Court: Missouri Supreme Court

152 S.W.2d 100

347 Mo. 1224

Accomac Realty Company, Appellant, v. City of St. Louis and State Highway Commission

No. 37380

Supreme Court of Missouri

June 10, 1941

Appeal from Circuit Court of City of St. Louis; Hon. William K Koerner, Judge.

Reversed and remanded.

Williams Nelson & English for appellant.

(1) The statements and arguments of counsel in another suit are not binding on plaintiff in this case, who was not a party to the prior suit. Nichols, Shepard & Co. v. Jones, 32 Mo.App. 657; Atchison, T. & S. F. Ry. Co. v Sullivan, 173 F. 456; 22 C. J. 336, sec. 378. (2) Proof as to the losses by the Julius Seidel Lumber Company on the Accomac Realty Company property prior to the erection of the viaduct are not admissible as evidence of the value of the land. Schaefer v. Frazier-Davis Const. Co., 125 S.W.2d 897. (3) The intervening petition filed by Julius Seidel in the case of United Bank & Trust Co. v. Julius Seidel Lumber Co. was not admissible against the plaintiff in this case as an admission. Bangs Milling Co. v. Burns, 152 Mo. 350, 53 S.W. 923; Home Telephone Co. v. Carthage, 235 Mo. 644, 139 S.W. 547; St. Charles Savs. Bank v. Denker, 275 Mo. 607, 205 S.W. 208; Meyer v. Dubinsky Realty Co., 133 S.W.2d 1106.

E. H. Wayman, Oliver Senti and Louis A. McKeown for respondents.

(1) The testimony of Julius Seidel, the individual, as representative of himself and his wife, as president and principal stockholder of the Accomac Realty Company and Seidel Lumber Company, auxiliary corporations, and as an adversary party to the action, relating to the kind and character, nature and extent of business conducted on plaintiff's adjacent land prior to the time of the construction of the viaduct, was admissible. (a) Such testimony is competent and not collateral to the issue. State ex rel. Highway Comm. v. Cox, 336 Mo. 271, 77 S.W.2d 116; Driver v. Western Union, 32 Wis. 569; King v. Minn. Union Ry. Co., 32 Minn. 224. (b) The testimony was elicited by a proper cross-examination of an adversary party to the action. Sec. 1889, R. S. 1939; Padgett v. Pence, 178 S.W. 205; Wigmore on Evidence (3 Ed.), sec. 916; Pulitzer v. Chapman, 85 S.W.2d 400, 337 Mo. 298; Lolordo v. Lacey, 337 Mo. 1097, 88 S.W. 353; Smith v. Ohio Millers, 6 S.W.2d 920, 320 Mo. 146; Jones v. Chicago, R. I. & P. Ry., 108 S.W.2d 94; Vernon v. Rife, 294 S.W.2d 747. (c) The evidence was competent, as knowledge of Mr. Seidel and admissions of Mr. Seidel are admissions of the corporation. Mr. Seidel was the corporation. Steam Stonecutter Co. v. Meyers, 64 Mo.App. 527; Marley v. Normans Land & Mfg. Co., 289 Mo. 221, 232 S.W. 704; Norma Mining Co. v. Mackay, 241 F. 640; Alaska Junea Co. v. Ebner, 239 F. 638. As principal officer and moving spirit of both corporations, his testimony was admissible. 13 Am. Jur., p. 162, sec. 8; Costigan v. Michael Transportation Co., 38 Mo.App. 219; Huse v. St. Louis Belting & Supply Co., 121 Mo.App. 89, 97 S.W. 990. The evidence showed a prior contrary position theretofore taken by plaintiff. State ex rel. Highway Comm. v. Hoffman, 132 S.W.2d 27. (d) The prior statements of Mr. Seidel were admissible as vicarious admissions, as they were made under circumstances when he had substantially the same interest as plaintiff, and therefore had the same testimonial value as if made by plaintiff. 4 Wigmore on Evidence (3 Ed.), sec. 1080a, p. 143. (e) Pleadings in other suits are admissible upon a showing that the attorneys were authorized to make such statements. Dowzelot v. Rawlings, 58 Mo. 75; Anderson v. McPike, 86 Mo. 293; Nichols v. Jones, 32 Mo.App. 657. (2) There was no competent evidence other than defendants' evidence to support a verdict for plaintiff. (a) The measure of damages to the adjacent property for altering the grade of Kingshighway or elevating the roadway is the difference between the fair market value of the whole tract or property before, and its fair market value after the appropriation, in view of the uses to which the land could thereafter be applied. St. Louis K. & W. Ry. Co. v. Knapp, Stout & Co., 160 Mo. 396, 61 S.W. 300; State ex rel. Highway Comm. v. Cox, 77 S.W. 116, 336 Mo. 271.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Plaintiff in its petition asked damages in the sum of $ 150,000 for alleged depreciation in value of its property, caused by a change in the grade of Kingshighway in the city of St. Louis, Missouri. The case was tried before a jury, resulting in a verdict and judgment in the sum of $ 14,280. From that judgment plaintiff appealed.

The only point briefed by appellant pertains to the admission of certain evidence. The statement of the case may therefore be brief. For an understanding of the issues it will suffice to quote portions of the statements from appellant's and respondent's briefs. Appellant makes the following statement:

"This is a suit by the Accomac Realty Company to recover damages to its property on South Kingshighway in the City of St. Louis, caused by the change of grade in front of its property as a result of the construction of the viaduct over the Missouri Pacific Railroad at Kingshighway. The case was tried to a jury and at the close of the whole case a demurrer to the evidence was sustained as to the defendant State Highway Commission of Missouri. The Court at the same time instructed the jury that their verdict should be in favor of the plaintiff and against the defendant City of St. Louis, so that the only question submitted to the jury was the amount of damages. The jury rendered a verdict in favor of the plaintiff and against the defendant City of St. Louis for twelve thousand seven hundred and fifty dollars damages, with interest thereon at six per cent (6%) per annum from October, 1937, to October, 1939, amounting to one thousand five hundred and thirty dollars ($ 1,530.00), and on said verdict judgment was entered in favor of the plaintiff and against the defendant for fourteen thousand two hundred and eighty dollars ($ 14,280.00) and costs."

In respondent's brief we find the following:

"Plaintiff's land in question consisted of two parcels on opposite sides of Accomac Street, bounded on the west by Kingshighway Boulevard. The one to the north of Accomac Street was practically square, being City Block 4095, with the northwest corner abutting the Missouri Pacific Railroad. The other portion was south of Accomac, being City Block 4094, irregular in shape and extending from Kingshighway Boulevard through to Vandeventer Avenue. Plaintiff's petition pleaded consequential damage to this property by reason of the construction of the viaduct in Kingshighway by the Missouri State Highway Commission. The Missouri State Highway Commission had constructed the viaduct under order of the Public Service Commission and a permit of the City of St. Louis. The City agreed with the Highway Commission to furnish the right-of-way and to stand the cost of consequential damage, if any, by reason of the construction. . . .

"Aside from the legal questions involved, practically the sole question of fact in the case devolved around whether or not the property was susceptible to or adaptable for retail use or industrial use before the construction of the viaduct. Plaintiff's valuation experts placed the difference in value before and after the viaduct on the basis that the property had been used and could have continued to be used for retail purposes, thereby giving a greater value to the property than for industrial purposes, and that the difference between the value of the land fronting on Kingshighway for retail purposes and the value of the property for industrial purposes represented the damage caused by the erection of the viaduct. On the other hand, defendants' evidence was to the effect that the trend in real estate for retail purposes had long since passed that section of the city, and the property had for some years past been industrial, and would continue to be industrial property and that the erection of the viaduct would have little or no effect upon its value or use for industrial purposes."

Plaintiff's witnesses placed the damages to the property, caused by the building of the viaduct, from about $ 60,000 to $ 70,000. The defendant's witnesses fixed the damages at a figure of from $ 6,000 to $ 12,000. Plaintiff introduced evidence in support of its theory that the property had a value for retail business purposes, while the defendant introduced substantial evidence that the property could best be utilized for industrial purposes and that it had no value for retail business. The error complained of arose in the following manner. The Julius Seidel Lumber Company had been doing a retail lumber business on plaintiff's property here in question since the year 1902. Julius Seidel was the president of the plaintiff company as well as of the Julius Seidel Lumber Company. In 1934 Seidel, as an intervenor, filed a petition in a receivership suit wherein he asked for the appointment of a receiver of all the property owned by the lumber company. In that petition it was alleged that the company had been losing money at the retail yard which was located on the property owned by plaintiff and which was alleged to have been damaged by the erection of the viaduct. The defendant, on a number of occasions, while plaintiff was offering evidence, attempted to get evidence before the jury that the president of the plaintiff company had made the statement, in a petition filed in the receivership suit of the lumber company, that the lumber company had been losing money in the retail business at Kingshighway. The trial court sustained the objection made by plaintiff to this evidence. Julius Seidel was not called as a witness by plaintiff. When the defendant introduced its...