City of Gladstone v. Hamilton

• Decision Date: 01 February 1971
• Docket Number: No. 25444,25444
• Citation: 463 S.W.2d 622
• Parties: CITY OF GLADSTONE, Missouri, Respondent, v. Dorothy Van Doren HAMILTON, Appellant.
• Court: Missouri Court of Appeals

Page 622

463 S.W.2d 622

CITY OF GLADSTONE, Missouri, Respondent, v. Dorothy Van Doren HAMILTON, Appellant.

No. 25444.

Kansas City Court of Appeals, Missouri.

Feb. 1, 1971.

Milton Sam Broome, Broome & Conkling, Kansas City, for appellant.

Shook, Hardy, Ottman, Mitchell & Bacon, Robert K. Waldo, Kansas City, for respondent.

DIXON, Commissioner.

This case of condemnation by the City of Gladstone for sewer easements resulted in a verdict of no damages in the Circuit Court trial. Appellant landowner (who was sued originally under her former name, Dorothy Van Doren Rider,) appeals claiming error in the refusal of offered testimony and improper instruction on the issue of damages. We reverse and remand for new trial.

Our holding is upon the basis of error in the instruction, and a short statement of the pleadings and evidence is necessary.

Plaintiff, a third class city, based its action upon the statutes relative to a taking for sewer purposes under Chapter 88, V.A.M.S. The proceedings do not follow this chapter of the statutes, but present a condemnation under the general condemnation statutes. ¹ The taking in this case involved two easements. Defendant's property was a lot which is dimensioned 121 feet by 141 feet. The first easement was contiguous to and extended by an additional 10 feet, an existing easement, across the 'back' of the lot. The second of these easements ran diagonally from the 'back' of defendant's land to its frontage on Antioch Road.

This latter easement, likewise 10 feet in width and 138 feet in length, was for a 'trunk line sewer.' Sewage for a large part of plaintiff city was carried in this trunk line to a connection with 'Kansas City's Sewer.' This trunk line sewer paralleled a creek or draw which had previously existed.

Defendant offered her own opinion evidence that the before and after values of the property showed damages in the amount of $9,000. On cross examination, plaintiff virorously attacked this opinion both as to substance and credibility.

Plaintiff's evidence consisted of a real estate expert and two engineers. Plaintiff never succeeded in obtaining any opinion evidence concerning value from its real estate expert, the defendant successfully interposing objections to all such questions. The testimony of the engineers established that the installation of the sewers was accomplished. A highway engineer offered evidence for plaintiff that defendant had given an easement for road drainage purposes sometime after the City's easement and that the work under the road easement had caused some of the damage to trees and change in grade upon which plaintiff relied to support her opinion as to loss of value after the City's taking.

The court then gave instruction No. 4 which was MAI 9.02 and MAI 33.03(3) modified which was given as instruction No. 6. It is here set out in full:

'INSTRUCTION NO. 6

Your verdict must be for plaintiff City of Gladstone if you do not believe the defendants have been damaged.'

Appellant contends that instruction No. 6, set forth above, was improper because all the evidence showed the defendant was damaged and that a converse should not have been allowed.

Respondent city justifies this instruction by contending that the record presented 'substantial' evidence 'to rebut' any evidence of value presented by defendant. City says its theory was 'no damages', that it 'rebutted' plaintiff's claim to 'damages' and therefore was entitled to present its theory in this form of a 'converse instruction' on damages.

Thus, both appellant and respondent adopt the theory that the quoted instruction constituted a converse to the damage instruction, No. 4, given by the court.

Neither of these positions is valid because they both rest upon the erroneous assumption that MAI 33.02(3) constitutes a converse to the measure of damage instruction whenever given.

This is not so. MAI does not provide for a converse of a measure of damage instruction either in a personal injury case or in a condemnation case as here. MAI 33.02 and its subparts instruct us in the conversing of verdict directing instructions. To the extent that 33.02(3) refers to damages, it refers to that portion of the plaintiff's verdict directing instruction which requires the jury to find plaintiff sustained damage as a direct result of the defendant's negligence.

This distinction is clearly drawn by Judge Finch in Aubuchon v. LaPlant, Mo., 435 S.W.2d 648. This opinion is instructive on the issues here presented because it demonstrates, in connection with a wrongful death action, the precise point here involved.

The court was considering a claim of error by plaintiff who recovered a $5,000 verdict under the wrongful death act. Plaintiff asserted error on the ground of multiple converse instructions.

Instructions were given which directed a verdict for the defendant if the jury did not believe the defendant was negligent, and a separate instruction to find for the defendant if they did not believe the plaintiff sustained 'damages' as a 'direct result of the negligence' of defendant.

The opinion says that it is clear that defendant was entitled to only one converse instruction citing Nugent v. Hamilton, & Son, Inc., Mo., 417 S.W.2d 939, and Murphy v. Land, Mo., 420 S.W.2d 505.

Defendant attempted to justify the use of the second instruction as being a converse of the plaintiff's measure of damages instruction. The court then held that no provision was made under MAI for the conversing of a measure of damages instruction, pointing out that in a wrongful death action, damages are not hypothesized in plaintiff's verdict directing instruction under either MAI 20.01 to 20.02. The reason being that nominal damages are presumed in such a case even though actual damage is not sustained.

The court goes on to say therefore:

'In wrongful death actions, unlike suits for personal injuries, the issue of whether plaintiff has proved pecuniary loss (damages) is not hypothesized in plaintiff's verdict directing instructions. See MAI 20.01 and 20.02. The reason for this, as set out in the Committee's Comment to MAI 20.01, is that nominal damages may be recovered in such a case as this even though actual damage is not sustained. That comment cites Stroud v. Masek, Mo., 262 S.W.2d 47, which involved an action by a wife for death...