City of St. Louis v. Worthington

• Citation: 19 S.W.2d 1066
• Decision Date: 13 September 1929
• Docket Number: 26347
• Parties: CITY OF ST. LOUIS v. WORTHINGTON
• Court: Missouri Supreme Court

19 S.W.2d 1066

CITY OF ST. LOUIS v. WORTHINGTON

No. 26347

Supreme Court of Missouri, First Division

September 13, 1929

Karl E. Lubke, of St. Louis, for appellant.

Julius T. Muench and Harry Richards, both of St. Louis, for respondent.

OPINION

LINDSAY, C.

This is an appeal taken in a condemnation proceeding, instituted by the city of St. Louis, against James A. Worthington, now deceased, for the purpose of condemning a tract of land belonging to said deceased containing 105.758 acres and situated in the county of St. Louis. The purpose of the city in acquiring the property is the extension of Koch hospital a public hospital owned by the city. The land condemned is the entire property of the deceased, that is, he had no property adjoining the property in question. The commissioners appointed to appraise the property made and filed their report, in which they appraised the land at $ 300 per acre, or a total of $ 31,725, and appraised the improvements thereon at $ 13,500, making a total award of $ 45,225. The defendant landowner filed exceptions to the report, which were sustained, and a trial by jury was demanded and granted. There was much testimony taken, and the jury returned a verdict awarding damages in the sum of $ 85,000. The trial court sustained the plaintiff's motion for a new trial upon the ground that the verdict was excessive and against the weight of the evidence as to amount. The defendant has appealed from that order. There is no complaint of the action of the trial court otherwise than as stated; the only error assigned being that of alleged error in granting a new trial on the ground the verdict was excessive, and, as to amount, against the weight of the evidence.

It is not contended that the trial court in such a proceeding is without power to set aside the verdict of a jury as being inadequate or excessive. The authorities generally recognize such power in the trial court. Nichols on Eminent Domain (2d Ed.) vol. 2, p. 1109; 10 R. C. L. pp. 222, 223. In Lewis on Eminent Domain (3d Ed.) vol. 2, p. 1377, it is said:

'The report or verdict may be set aside on the ground that the damages awarded are too much or too little. In setting aside a report on the question of damages, the court will be governed by the same principles as obtain in the case of the verdicts of juries in common law suits. Where there is evidence to sustain the verdict and the testimony is conflicting, the court ordinarily will not interfere on this ground alone; and especially is this the case where the commissioners or jury have viewed the premises.'

In Nichols on Eminent Domain, p. 1109, it is said:

'In those states in which the constitution requires a jury trial in eminent domain proceedings, it is the jury trial as known at common law that is intended, and there must be a trial by a jury of twelve men in the presence and under the charge and supervision of the judge empowered to instruct them on the law, and to set aside the verdict if in his opinion it is against the law or the evidence. It is accordingly within the power of the judge presiding at the trial of a land damage case by a jury to set aside the verdict on the ground that in his opinion it is so grossly inadequate or excessive as to be unsupported by the evidence.'

The rule observed in law cases involving the question of unliquidated damages applies in this case. City of St. Louis v. Lanigan, 97 Mo. 175, 10 S.W. 475; City of St. Louis v. Wetzel, 110 Mo. 260, 19 S.W. 534. To the same effect see, also, City of St. Louis v. Brown, 155 Mo. 545, 567, 56 S.W. 298. The rule followed by this and other appellate courts in actions at law for the assessment of unliquidated damages is stated as follows in 4 C. J. p. 835:

'The action of the trial court in setting aside or refusing to set aside a verdict on the ground that the damages are inadequate, or in granting or denying a motion to set aside a verdict on the ground that the damages are excessive, is within the discretion of the court and not subject to review except in cases where this discretion has been abused and this fact is made to appear clearly. Nevertheless the discretion is a legal one, and a capricious or arbitrary exercise thereof may constitute a ground for reversal.'

The rule has been stated many times by this court. In First National Bank of Brunswick v. Wood, 124 Mo. 1. c. 76, 27 S.W. 554, 555, it was said:

'Circuit courts have large discretion in the matter of granting new trials, particularly upon the ground that the verdict is against the weight of evidence. This court has often ruled that in law cases, where there is a conflict in the evidence, it would not review it and determine its weight; and it has as often declared it to be not only the right, but the duty, of circuit courts to supervise the verdicts of juries and grant new trials, if the verdict is, in their opinion, against the weight of evidence. When there is a substantial conflict in the evidence, we should no more interfere with the action of the circuit court in granting a new trial than we should, in such case, interfere with the verdict which has been approved by that court.'

Reference to many cases wherein the rule was stated may be found in the opinion in Devine v. City of St. Louis, 257 Mo. 470, 475, 165 S.W. 1014, 51 L. R. A. (N. S.) 860.

There is a very wide range in the estimates of values as made by the witnesses. Some of them gave testimony as to the value of the improvements only, and others as to the value of the land without considering the improvements.

Counsel for defendant appellant in their brief have set out a table or summary statement of the values as fixed by the witnesses. This, in some measure, illustrates the character of the testimony, and we set it out. It is as follows:

Defendant's Witnesses.

Real Estate

Improvements

Total

James A. Worthington

$ 151,000.00

Wm. Baumgartner

$ 25M to $ 30M

Fred J. Falzone

25,650.00

R. C. Miller

15.500.00

John H. Uthoff

$ 84,000.00

20,000.00

104,000.00

Edward L. Hohenstein

100M to 110M

John L. Schopflin

67,879.00

Henry C. Kirchner

106,818.50

53,046.80

159,865.30

Hugo Essen

105,000.00

John C. Heimo

84,000.00

Plaintiff's Witnesses.

Martin C. Bartels

16,953.41

Charles N. Brietschuh

16,953.41

S. J. Will

32,000.00

13,500.00

35,500.00

William Appel

17,375.00

Fred L. Kerth

22,575.00

13,500.00

36,075.00

John L. Crecelius

21,000.00

William E. Huppert

15,250.00

Fred J. Hollocher

18,375.00

5,200.00

23,575.00

George B. Bowles

32,000.00

13,500.00

45,500.00

From this it may be observed that plaintiff's witness Hollocher, a banker at Clayton, in his testimony fixed the value of the improvements at $ 5,200, while defendant's witness Kirchner, also of Clayton, and clerk of the circuit court in St. Louis county, valued the improvements at $ 53,046.80, or more than ten times the amount given by Hollocher. The ratio between the values respectively placed by said witnesses on the real estate is as seven to one. The property is farm property, and the improvements consist mainly of the houses and barns thereon, with some other improvements. The property has a frontage of 1,800 feet on the Mississippi river, and lies between Koch Hospital and Jefferson Barracks, or about 10 miles from the city of St Louis. The defendant's witnesses Kirchner, Schopflin, and Essen, and one or two others, placing the higher values upon the property, based their statements as to values upon the fitness of the property as affording a site, or sites, for industrial purposes, or, as one or two of them stated, the probable value of the property for the purposes of subdivision into lots. It seems fairly evident that the trial court was of the opinion that the jury had given too much weight to what the court regarded as somewhat extravagant and speculative estimates, given by expert witnesses as to the value of the property for supposed future uses. The trial judge heard all of this testimony, saw all of the witnesses and was far better qualified thereby than an appellate court can be...