Hull v. City of St. Louis

• Decision Date: 03 April 1897
• Parties: Hull, Appellant, v. City of St. Louis, Trustee of the Mullanphy Bequest
• Court: Missouri Supreme Court

40 S.W. 89

138 Mo. 618

Hull, Appellant, v. City of St. Louis, Trustee of the Mullanphy Bequest

Supreme Court of Missouri, Second Division

April 3, 1897

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Affirmed.

Lubke & Muench for appellant.

(1) The trial court erred in refusing to give, as asked, the appellant's second instruction. There was ample evidence tending to show "the compensation at the time usually paid to and received by competent real estate agents of said city for like services." 2 Sutherland on Damages, p 444; see, also, 1 Ib., p. 799; White v. Harman, 5I Ill. 243; Harrison v. Glover, 72 N.Y. 451; Ragan v. Railroad, 111 Mo. 456. The value of labor may be testified to by one constantly employing similar labor, and proof of what is usually charged by real estate agents is competent evidence. Kelly v. Rowane, 33 Mo.App. 440; Levitt v. Miller, 64 Mo.App. 147. (2) It is error to give an instruction which singles out one or more particular facts and gives them prominence. It is also error to omit from a general instruction an important and legal element in the evidence before the jury. Both of these rules were violated by the trial court in the case at bar first, in eliminating from the general instruction asked by appellant the important element above stated; and, secondly, by the court giving of its own motion another instruction which singled out all the other facts to the exclusion of this one. In support of the first one of these rules, see Kendig v. Railroad, 79 Mo. 207; Barr v. City of Kansas, 105 Mo. 550; Railroad v. Stock Yards, 120 Mo. 559. And in support of the second one, see Willmott v. Corrigan Consolidated Street Railway Company, 106 Mo. 535; Stocker v. Green, 94 Mo. 280; Clark v. Hammerle, 27 Mo. 55. (3) The trial court erred in giving defendant's instruction which authorized the jury to disregard the opinions of the expert witnesses, "as to the value of plaintiff's services."

The court having eliminated from the other instructions the proof as to what was usually paid for such services there was left upon the question of value only the opinions of the experts. This instruction in effect authorized the jury to eliminate these opinions also, and to make their findings independent of any evidence. This was error, and made their findings independent of any evidence. This was error, and made the introduction of the evidence a farce. City of Kansas v. Hill, 80 Mo. 523; Washburn v. Railroad, 59 Wis. 364. (4) The instruction assailed the witnesses without cause, and was calculated to mislead the jury. Bank v. Armstrong, 62 Mo. 59; State v. Elkins, 63 Mo. 159; White v. Maxcy, 64 Mo. 559; White v. Lowenburg, 55 Mo.App. 69; Railroad v. Dawley, 50 Mo.App. 480. (5) When a verdict is reached by each juror setting down a figure and then dividing the aggregate by twelve, this is misconduct for which the verdict must be set aside. Sawyer v. Railroad, 37 Mo. 242; Sharp v. Railroad, 114 Mo. 105. (6) To be a true one the verdict must be based upon or in accord with the substantial evidence, otherwise it should be set aside. Whitsett v. Ransom, 79 Mo. 259; Garrett v. Greenwell, 92 Mo. 120; Gurley v. Railroad, 104 Mo. 233, 234.

W. C. Marshall and B. Schnurmacher for respondent.

(1) The court did not err in modifying plaintiff's instruction, because the instruction, as offered, assumed that there was a usual compensation paid for services such as are sued for in this case. There was a difference of opinion among even plaintiff's witnesses as to whether such a custom existed. If there had not been this contrariety of opinion on the part of the witnesses, it would still have been error for the court to assume the fact to have been proven. It was not admitted, either by the pleadings or upon the trial. Instruction should put the case to the jury hypothetically, and not lead them to understand that in the opinion of the court a given fact is or is not conclusively established by the proof. Fullerton v. Fordyce, 121 Mo. 1; Wilkerson v. Eilers, 114 Mo. 245; Stone v. Hunt, 94 Mo. 475; Dulaney v. St. Louis Sugar Ref. Co., 42 Mo.App. 659; Hanlon v. O'Keeffe, 38 Mo.App. 273. (2) Defendant's instruction regarding the conclusiveness of the expert opinions upon value was proper and its language was moderate and guarded. Expert testimony is, at the most, only advisory, and is not conclusive or binding upon the triers of the facts. Rose v. Spies, 44 Mo. 20; Thompson v. Ish, 99 Mo. 160 (179); Price v. Insurance Co., 48 Mo.App. 281; Benjamin v. Railroad, 50 Mo.App. 602; Western Union Telegraph Co. v. Light Co., 46 Mo.App. 121; Shanley v. Gas Light Co., 63 Mo.App. 123; Hampton v. Massey, 53 Mo.App. 501; Forsythe v. Doolittle, 120 U.S. 73; Bentley v. United States, 26 Ct. Cl. 241; People v. Vanderhoof, 71 Mich. 158; Turnbull v. Richardson, 69 Mich. 400; Aldrich v. Grand Rapids Cycle Co., 61 Minn. 531; Olson v. Gjertsen (Minn.), 42 Minn. 407; Stevens v. Minneapolis, 42 Minn. 136; Arndt v. Hosford, 82 Iowa 499; Railroad v. Drake, 46 Kan. 568; Bentley v. Brown, 37 Kan. 14; Uhlig v. Barnum (Neb.), 61 N.W. 749; Bourke v. Whiting (Colo.), 37 P. 172. The instruction did not "assail" the expert witnesses. Arndt v. Hosford, 82 Iowa 499. (3) There is nothing in the record to justify the citation of authorities to the effect that "where a verdict is reached by each juror setting down a figure and then dividing the aggregate by twelve, there is misconduct, for which the verdict must be set aside." No misconduct was charged, nor is there any such ground assigned in the motion for new trial. Rose v. Spies, 44 Mo. 20. It can not be said that the verdict is against the evidence because it did not adopt as correct the expert opinions of value. Stevens v. Minneapolis, 42 Minn. 136; Railroad v. Drake, 46 Kan. 568.

W. C. Marshall and B. Schnurmacher for respondent on motion for rehearing.

(1) We believe that through an inadvertent oversight, the court overlooked the qualifying clause in the instruction criticised. City of St. Louis v. Ranken, 95 Mo. 189; People v. Vanderhoof, 71 Mich. 158, directly in point. We respectfully, but earnestly, ask the court to reconsider this matter and not to permit the opinion in this case to stand, thus raising a conflict with the Ranken case, which is consistent with the many adjudications upon this subject.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This is an action for compensation for personal services rendered by plaintiff for defendant in and about the appraisement of certain property which it holds in trust as a charitable fund to furnish relief to all poor emigrants and travelers coming to St. Louis bona fide to settle in the west.

The amount sued for was $ 3,250. The amount for which plaintiff recovered a verdict before a jury was $ 1,188. He then filed his motion for a new trial, which was overruled and he appealed.

In 1851, one Bryan Mullanphy died testate. By his will he devised one third of all his property, real, personal, and mixed, to the city of St. Louis in trust, to be and constitute a fund to furnish relief to all poor emigrants and travelers coming to St. Louis bona fide to settle in the west.

The city accepted the trust, and by ordinance created a board called the "Board of Commissioners of the Mullanphy Emigrant Relief Fund" to carry out the purposes of the testator.

The board desiring to have the trust property appraised, on September 13, 1893, employed the plaintiff, Charles Green, and T. J. Quinn, as such appraisers. No agreement was made as to the compensation that they were to receive for their services.

The property to be examined and appraised was in the city of St. Louis. There was evidence tending to show that the appraisers were informed that they might hire carriages to take them to the property, a clerk to assist them in their work and a surveyor to locate the property.

For these services a bill for carriage hire amounting to $ 200, a surveyor's bill of $ 800, and a bill of $ 2,400 for services alleged to have been rendered by the clerk of the appraisers. This bill the board declined to pay upon the ground that it was contracted without authority from the board, and declined to pay the amount demanded by the appraisers upon the ground that the same was excessive.

Plaintiff was at the time of his appointment a real estate agent in said city. The time consumed in making the appraisement, report, etc., was two hundred and twenty-eight days. The plaintiff and eleven other witnesses, including the appraisers, Quinn and Green, testified in his behalf and estimated the value of the services rendered by plaintiff at $ 3,250, while five witnesses who testified in behalf of defendant estimated them at from $ 1,000 to $ 1,200.

At the instance of the plaintiff the court gave to the jury the following instruction:

"1. The court instructs the jury to find for the plaintiff Leon L. Hull, and to assess his compensation at such sum as from the evidence before them the jury may believe his services to have been reasonably worth."

The court refused to give to the jury the following instruction:

"2. In estimating the reasonable value of plaintiff's services, the jury may take into consideration the evidence showing plaintiff's experience as a real estate agent in the city of St. Louis, at the time when the services were rendered, the compensation at the time usually paid to and received by, competent real estate agents of said city for like services, the character and amount of property examined and appraised by plaintiff, the services actually performed in making such examination and appraisement, and time consumed therein, and also the reasonable opinions of expert witnesses who have testified upon this trial, as well as...