City of St. Louis v. Franklin

• Decision Date: 07 April 1930
• Docket Number: 28893
• Parties: City of St. Louis, Appellant, v. Mary R. Franklin et al
• Court: Missouri Supreme Court

26 S.W.2d 954

324 Mo. 1212

City of St. Louis, Appellant, v. Mary R. Franklin et al

No. 28893

Supreme Court of Missouri

April 7, 1930

Appeal from Circuit Court of St. Louis County; Hon. G. A Wurdeman, Judge.

Affirmed.

Julius T. Muench and Richard S. Bull for appellant.

(1) While the rule is that the trial court has power to set aside the verdict of a jury as being inadequate, its action in granting a new trial on that ground is subject to review if there has been an abuse of sound discretion. The discretion vested in the trial court in this respect is a legal one and its exercise must remain within the bounds of reason. Where it appears from the record that the action in ordering a new trial was capricious or arbitrary, or has no basis, a reversal will be entered. St. Louis v. Worthington, 19 S.W.2d 1066; Kelly v. Higginsville, 185 Mo.App 55; Grocery Co. v. Hotel Co., 183 Mo.App. 429; Edwards v. Railway Co., 82 Mo.App. 478; 4 C. J. 797 835; 2 R. C. L. 211, 217, secs. 176, 182. (2) The verdict of a jury, particularly in a condemnation suit where the evidence is usually conflicting, is entitled to some weight; its finding should not be set aside merely because the trial court would have found a different sum. 10 R. C. L. 122, sec. 189; Railway v. Knapp-Stout Co., 160 Mo. 416; Railway v. Cartan, 204 Mo. 565; Brown v. Power Co. (N. C.), 3 L. R. A. (N. S.) 918.

Wurdeman, Stevens & Hoester for respondents.

(1) The court committed no error in setting aside the award of the jury and granting the respondents a new trial upon the theory that the verdict of the jury was inadequate. It is within the power of the judge presiding at the trial of a land-damage case by a jury to set aside the verdict upon the ground that in his opinion it is so grossly inadequate or excessive as to be unsupported by the evidence St. Louis v. Worthington, 19 S.W.2d 1066; First National Bank v. Wood, 124 Mo. 72; Hewitt v. Steele, 118 Mo. 463; Bank v. Armstrong, 92 Mo. 265; 2 Nichols on Eminent Domain (2 Ed.) 1109; 4 C. J. 835; Devine v. St. Louis, 257 Mo. 470, 51 L. R. A. (N. S.) 860. (2) A motion for a new trial is addressed to the sound discretion of the trial court. Its action in sustaining the motion will not be reviewed except where there is a clear, manifest and arbitrary abuse of the discretion. Parker v. Britton, 133 Mo.App. 274; Dual v. St. John, 207 Mo. 631; Rodan v. Transit Co., 207 Mo. 406; Morrell v. Lawrence, 203 Mo. 363; Karnes v. Winn, 126 Mo.App. 712; Manufacturing Co. v. Construction Co., 124 Mo.App. 368. (3) It is the duty of the circuit courts to supervise the verdicts of juries and grant new trials if the verdict is, in their opinion, against the weight of the evidence. And when there is a substantial conflict in the evidence the appellate courts will no more interfere with the action of the circuit courts in granting a new trial than they would interfere with the verdict of the jury which has been approved by the trial court. McCarty v. Transit Co., 192 Mo. 401; Taylor v. Railroad Co., 163 Mo. 191; Gould v. St. John, 207 Mo. 631; MacKay v. Underwood, 47 Mo. 187; Roden v. Transit Co., 207 Mo. 392; Morrell v. Lawrence, 203 Mo. 381.

White, J. Blair, P. J., concurs; Walker, J., not sitting.

OPINION

WHITE

This proceeding was begun to condemn a right of way one hundred feet wide for an underground water pipe through a tract of land in St. Louis County belonging to the defendants. The tract was rectangular in shape, containing eleven and one-half acres. It was approached from the front by a private road which led from the Olive Street Road. The right of way condemned was a hundred-foot strip running diagonally across the rear, cutting off a little corner of the land. The amount of land taken was .6372 of an acre, and the corner cut off was .1391; the total affected, including the corner cut off, being .77, or a little more than three-quarters of an acre.

Three commissioners were appointed by the circuit court, who assessed the damages at $ 4,266.95. The city, plaintiff, filed exceptions to the award. A jury trial was ordered and resulted in a verdict for $ 2500 damages to the defendants.

A motion for new trial was filed by the defendants and sustained by the trial court on the ground that the award was inadequate. Judgment followed from which the plaintiff appealed.

Granting a new trial on the ground assigned is equivalent to saying that in the mind of the trial judge the verdict is contrary to the weight of the evidence. We have held consistently that a trial judge, in sustaining a motion for new trial on that ground, has wide discretion with which we will not interfere unless it is manifestly abused. In passing upon it we cannot substitute our judgment for the judgment of the trial court in weighing evidence upon which he based that ruling. [City of St. Louis v. Worthington, 19 S.W.2d 1066; Devine v. St. Louis, 257 Mo. 470, l. c. 475.] In view of that principle of law we may briefly state the evidence in this case.

The defendants introduced ten witnesses besides Mrs. Franklin and her son. Three of them, who qualified as having knowledge of the value of real estate, testified that the damage to the tract, including the property taken, was $ 4200; one man testified that it was $ 5,000; three others testified that the land was worth $ 2,000 to $ 3,000 an acre and that the damage to the part not taken was $ 200 to $ 250 an acre. The witness who placed the damage at five thousand dollars estimated that the property was worth $ 24,000; that two acres were taken, which would be about four thousand dollars, besides the damage to the tract. After being apprised that the amount actually taken, including the corner cut off, was...