DeArmon v. City of St. Louis

• Decision Date: 01 July 1975
• Docket Number: Nos. 36073 and 36074,s. 36073 and 36074
• Parties: John DeARMON, Plaintiff-Appellant, v. CITY OF ST. LOUIS, a Municipal Corp., Defendant-Respondent. John DeARMON, Plaintiff-Respondent, v. Richard SMITH d/b/a Richard Smith Contracting Company, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 795

525 S.W.2d 795

John DeARMON, Plaintiff-Appellant, v. CITY OF ST. LOUIS, a Municipal Corp., Defendant-Respondent.

John DeARMON, Plaintiff-Respondent, v. Richard SMITH d/b/a Richard Smith Contracting Company,

Defendant-Appellant.

Nos. 36073 and 36074.

Missouri Court of Appeals, St. Louis District, Division Three.

July 1, 1975.

Sommers & Holloran, Inc., Michael D. Stokes, St. Louis, for plaintiff-appellant.

Marvin S. Wood, St. Louis, for defendant-appellant.

Jack L. Koehr, City Counselor, Judith Anne Ronzio, Asst. City Counselor, St. Louis, for defendant-respondent.

McMILLIAN, Judge.

This is a suit filed by plaintiff for real property damages caused by defendant Smith, a wrecking contractor (Smith), while the said defendant's employees were raizing property adjacent to plaintiff's building. Plaintiff named as a co-defendant the City of St. Louis (City) on the theory that Smith at the time he damaged plaintiff's building was acting as an agent, servant, or employee of the City.

After the court sustained City's motion for a directed verdict at the close of plaintiff's case, subsequently the jury awarded plaintiff damages against Smith in the sum of $8500.00. From this award, Smith appeals. Plaintiff also appeals from the court's order which sustained City's motion for a directed verdict. We have consolidated the two appeals.

In Smith's appeal, the issues are whether the court erroneously (1) directed a verdict against defendant Smith on the issue of liability; (2) instructed on the issue of damages; (3) refused to permit defendant to show the cost of repairs to the damaged building; and (4) permitted an excessive verdict to stand, or alternatively permitted a verdict to stand which was the result of jury bias and prejudice. We affirm the judgment in favor of plaintiff against defendant Smith.

Since Smith does not question the sufficiency of the evidence we shall set forth only those facts necessary for a disposition of this appeal.

On January 5, 1972, or December 28, 1971, employees of Smith's, while raizing an adjacent, condemned building under a contract with City knocked a hole in the east wall of plaintiff's building. The hole extended from the foundation, either almost to the second floor, or covering both the first and second floors and the bottom of the third floor.

Plaintiff's expert witness fixed the reasonable market value of plaintiff's building before the accident between $8,000 and $10,000--after the damage had occurred, he testified that building had no value. Smith's expert testified that plaintiff's building had no value either before or after the accident because 'there are no sales of such houses, no loans made.'

Smith's attorney, during the time allotted to him to make his opening statement as to Smith's evidence, admitted not only that his employees damaged plaintiff's building but also his responsibility to pay plaintiff a certain sum, which he suggested to be $1,000. The court construed these statements to be an admission of liability, and, accordingly, directed a verdict on this issue.

As a rule opening statements usually are not considered as judicial admission unless an attorney makes clear, unequivocal admission of fact, in which case they are binding on the party in whose interest they are made. McCarthy v. Wulff, 452 S.W.2d 164, 167 (Mo.1970). A mere statement or outline, however, of anticipated proof upon any one or more issues in the case is not to be regarded as a binding admission so as to either bind the party whose counsel made the statement or to dispense with the necessity of proof on the issue on the part of his adversary. Bayer v. American Mut. Cas. Co., 359 S.W.2d 748, 753 (Mo.1962). Unlike an evidentiary admission, an admission in an opening statement is a judicial admission and is conclusive. ¹ So the question becomes, did Smith's counsel make a clear, unequivocal admission in his opening statement that his client was liable for the damage caused to plaintiff's building. We hold that Smith's defense as outlined in his opening statement was a clear, unequivocal admission of liability that was directed to a lessening of damages, not to the issue of liability. Thus we find this issue against defendant.

Defendant argues that improper damage instructions were given. The court gave a modification of MAI 4.02, which required the jury to award the difference between the fair market value of the building before and after it was damaged. The court also gave MAI 16.02, the standard definition of fair market value. Defendant argues that MAI 4.01 (entitled 'Measure of Damages--Personal and Property') should have been given.

The titles of the respective MAI's clearly state the kind of case to which each applies. MAI 4.02 is for 'Property (damage) only.' Notes on Use of MAI 4.02 state that it 'should be used inc ases involving the property 'should be used in cases involving the property

A recent Springfield case elaborates on the choice of MAI 4.02 over 4.01 when only property damage is involved. In State ex rel. State Highway Commission v. Beaty, 505 S.W.2d 147 (Mo.App.1974), the Highway Commission sought recovery for damages allegedly done to a bridge by defendant. On appeal from judgment for plaintiff, defendant argued that the trial court erroneously gave MAI 4.01 but should have given MAI 4.02, since the case involved property damage only. The court agreed and reversed plaintiff's judgment. The court recited the bold-face names of the two instructions and the Notes on Use which required strict compliance with all the requirements of MAI. State ex rel. State Highway Commission v. Beaty, supra. The court rejected plaintiff's argument that if the more general MAI 4.01 is sufficiently clear to guide juries in cases involving both personal and property damage, it could not possibly mislead the jury when only property damage is involved. The Court rebuffed plaintiff for implying that MAI 4.02 is not needed and should be ignored, after the Missouri Supreme Court, by promulgating a second edition of MAI (in 1969), determined that 4.02 was necessary and mandatory in property-damage-only cases. State ex rel. State Highway Commission v. Beaty, supra, at 154.

Rule 70.01(b), V.A.M.R. requires that an applicable MAI 'be given to the exclusion of any other on the same subject.' There is no doubt that MAI 4.02 is an applicable MAI here. There was no error in giving it to the jury.

We note that defendant's cases which seem to sanction use of MAI 4.01 in property-damage-only cases predate inclusion of MAI 4.02 (see page XIX of MAI 2d ed.). The only case not predating MAI 2d ed. involved personal injuries. Reynolds v. Arnold, 443 S.W.2d 793 (1969).

Defendant further argues that MAI 16.02 in defining 'Fair Market Value' (a term used in MAI 4.02) handed the jurors 'a roving commission to consider any 'use' of the property in bringing in their verdict.'

The clear words of MAI 16.02 rebut this argument by instructing the jury to consider, 'all the uses to which the property may best be applied or for which it is best adapted, under existing conditions and under conditions to be reasonably expected in the near future.' (Emphasis added.) There was no instruction error.

The court refused to allow Smith to elicit testimony concerning the cost to repair the damage to the building because the court said, '. . . the damages were so extensive that the only question involved was the value of the property before and after the damage. . . .'

Defendant argues that the trial court erroneously excluded evidence of the reasonable cost to repair plaintiff's building.

The general rule is that the measure of damages for injury to real property is the difference in value immediately before and immediately after the event causing the injury (diminution-in-value test). Misch v. C.B. Contracting Co., 394 S.W.2d 98, 101 (Mo.App.1965). However, where damage to land or a building thereon can be restored to its former condition at a cost less than the diminution in value, cost of restoration becomes the measure. Baker Companies v. Pasley Mfg. & Distributing Co., 413 S.W.2d 268, 273--274 (Mo.1967); Beaty v. N.W. Elec. Power Co-op, Inc., 296 S.W.2d 921, 924 (Mo.App.1957).

Courts have said that the cost-of-repair test is an exception to be used only where the amount of damage is insignificant as compared to the value of the property as a whole and involves only a small part thereof. Gulf, M. & O.R. Co. v. Smith-Brennan Pile Co., 223 S.W.2d 100, 104--105 (Mo.App.1949). It has been suggested that 'courts tend to use the diminution test without hesitation in circumstances that suggest a very high restoration cost.' Dobbs, Remedies, § 5.1, at 317 (1973). A court has held that it was improper to submit a case to the jury on the theory of cost of repairs because it was not shown that the damage was comparatively insignificant, considering the total value of the building. De Long v. Broadston, 272 S.W.2d 493, 497 (Mo.App.1954).

In the case of Curtis v. Fruin-Colnon Contracting Co., 336 Mo. 676, 253 S.W.2d 158, 164 (1952), Judge Hyde, after recognizing the general rule (diminution of value) said, 'However, where damaged land or a building thereon can be restored to its former condition, at a cost less than the diminution in value, the cost of restoration may be recovered.' He observed further that the restoration rule (cost-of-repairs) is applicable only to cases where the cost of restoration is less than the difference in value of the land before and after injury and can never be applied in any case where the cost of restoration is greater than the value of the building.

In our case Smith contends that the cost of repairs is the proper rule to be followed--because the damage was easily reparable, and that 11 rooms of the 13 rooms were intact. On the other hand, however, the testimony and the photographic evidence shows the damage to the building to be extensive, a large, gaping hole on the exterior...