Missouri Crooked River Backwater Levee Dist. of Ray County v. Merrifield

• Citation: 218 S.W.2d 110,358 Mo. 915
• Decision Date: 14 February 1949
• Docket Number: 40893
• Parties: In re the Missouri Crooked River Backwater Levee District of Ray County, Missouri, a Public Corporation, Respondent, v. Charles Merrifield and Kathleen Merrifield, Appellants
• Court: United States State Supreme Court of Missouri

218 S.W.2d 110

358 Mo. 915

In re the Missouri Crooked River Backwater Levee District of Ray County, Missouri, a Public Corporation, Respondent, v. Charles Merrifield and Kathleen Merrifield, Appellants

No. 40893

Supreme Court of Missouri

February 14, 1949

Motion for Rehearing or to Transfer to Banc Overruled March 14 1949.

Appeal from Ray Circuit Court; Hon. James S. Rooney, Judge.

Reversed and remanded (with directions).

Wilson D. Hill and Harry D. Hall for appellants.

(1) The action of the court in sustaining the motion was erroneous. Supreme Court Rule 1.10; Mo. R.S.A. 847.115; Crawford v K.C. Stockyards Co., 215 Mo. 394, 114 S.W. 1057. (2) The charge of bias and prejudice is unfounded. Hancock v K.C. Terminal Railroad, 146 S.W.2d 627, 347 Mo. 166; Stokes v. Wabash Railroad, 197 S.W.2d 304. (3) The court erred in respondent's favor in excluding evidence of the district's lack of authority and arbitrary actions. Mo. R.S.A. 12502, 12503, 12532; Mississippi & Fox Drainage Dist., 270 Mo. 157, 192 S.W. 727; Elsberry Drainage Dist. v. Meyers, 209 S.W. 913, 277 Mo. 439; State ex rel. Harrison v. Hill, 253 S.W. 448, 212 Mo.App. 173; 29 C.J.S., p. 887; Amer. Tel. & Tel. Co. v. St. Louis R., 101 S.W. 576, 202 Mo. 656; 14A C.J., p. 1104; Moore v. Whitcomb, 48 Mo. 543; Holdaway v. St. Louis-S.F.R. Co., 269 S.W. 641; State ex rel. Star Publishing Co. v. Associated Press, 60 S.W. 91, 159 Mo. 410; State ex rel. K & T Coal Co. v. Shelton, 55 S.W. 1008, 154 Mo. 670; Sassman v. Mo. State Highway, 45 S.W.2d 1093; State ex rel. Siegel v. Grimm, 284 S.W. 490, 314 Mo. 242. (4) There was no error in the argument to the jury. Gary v. Averill, 12 S.W.2d 747; Beebe v. Kansas City, 34 S.W.2d 57, 327 Mo. 67; Glaves v. Old Gem Catering Co., 18 S.W.2d 564.

William T. Thompson, Arthur R. Kincaid, and Lawson, Hale & Coleberd for respondent.

(1) The verdict being against the weight of the evidence, the trial court had the exclusive right to grant respondent a new trial. (2) The granting of a new trial when the verdict is against the weight of the evidence is a discretionary right vested solely in the trial court. King v. Mann, 315 Mo. 318, 286 S.W. 100; Wilson v. Caulfield, 67 S.W.2d 761; Michie v. Fitzmaurice, 62 S.W.2d 773; Metropolitan Lead & Zinc Mining Co. v. Webster, 193 Mo. 351, 92 S.W. 79; Riche v. St. Joseph, 326 Mo. 691, 32 S.W.2d 578. (3) The constant attempt of appellants to inject the false issue as to the necessity and location of the levee into the case, thereby tending to prejudice the jury against respondent, when the only issue was that of the amount of appellants' damage, is sufficient to support the ruling of the trial court on respondent's assignment "That the verdict of the jury is the result of bias and prejudice in favor of claimants (exceptors) and against petitioner -- district." State ex rel. Union Electric L. & P. Co. v. Bruce, 334 Mo. 312, 66 S.W.2d 847; Siemen v. St. Louis Electric Term. Ry. Co., 155 S.W.2d 130; Railroad Co. v. Drummond Realty & Inv. Co., 205 Mo. 167; Sec. 1508, R.S. 1939.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

Respondent, Missouri Crooked River Backwater Levee District of Ray County, Missouri, instituted condemnation proceedings for the purpose of appropriating a strip of defendants' land upon which to build a levee. Commissioners were appointed to assess damages and benefits. The defendants filed exceptions to the report of the Commissioners. The question of damages was tried before a jury. A verdict was returned in favor of the defendants, the exceptors, in the sum of $ 9,495. The Levee District filed a motion for a new trial which the trial court sustained.

The court did not specify upon what ground the motion was granted. The defendants duly appealed. Rule 1.10 of this court provides that when a trial court fails to specify the grounds on which a new trial is granted, the presumption shall be that it was erroneously granted. The rule further provides that in such cases it shall never be presumed that the new trial was granted on any discretionary grounds. The rule also places the burden on the respondent in such cases to sustain the action of the trial court. Pursuant to the provision of this rule, respondent filed the original brief in this court and also filed a reply brief to appellants' brief. This is the correct procedure. The motion for new trial in this case contained only three assignments. We, therefore, set them forth in full. They are as follows:

"1. That the court erred in admitting incompetent, irrelevant and immaterial evidence offered by claimants (exceptors) over the objection and exception of petitioner-district;

"2. That the verdict of the jury is the result of bias and prejudice in favor of claimants (exceptors) and against petitioner-district;

"4. (?) That claimants' (exceptors) damage as assessed by the jury are wholly unconscionable, excessive, unreasonable and without substantial support of the evidence in the case."

Respondent briefed only two points which are as follows:

"The verdict being against the weight of the evidence, the trial court had the exclusive right to grant respondent a new trial.

"The constant attempt of appellants to inject the false issue as to the necessity and location of the levee into the case, thereby tending to prejudice the jury against respondent, when the only issue was that of the amount of appellants' damage, is sufficient to support the ruling of the trial court on respondent's assignment 'That the verdict of the jury is the result of bias and prejudice in favor of claimants (exceptors) and against petitioner-district'."

A brief statement of the evidence will suffice. The district contained a total of over 5000 acres of land. Appellants owned 160 acres which was taken into the levee district. About 100 acres was high bottom and not subject to overflow. The other 60 acres was subject to overflow. The amount of land sought to be condemned was 9.07 acres and all of it was high bottom. The levee on appellants' land was to have a base of 65 feet and ranged from zero to 11 feet in height. The earth necessary to construct the levee was to be taken from appellants' land, creating what is commonly called a borrow pit. Appellants introduced evidence given by a number of farmers living in the neighborhood that the 9.07 acres to be taken was some of the best land of the farm; that the 100 acres had never been subject to a flood; also, that the proposed levee would not protect the 60 acres of low land against floods. These witnesses estimated the value of appellants' land to be about $ 200 per acre. Some witnesses placed the value higher and others lower. The witnesses for the district placed the value of the high land at $ 150 per acre and the low land at about $ 50 per acre. All witnesses agreed that the high land was not subject to overflow. Appellants' witnesses testified that the market value of the land would be decreased about 50% by the construction of the levee. Their opinion was based on the theory that the levee would be of no benefit to appellants' land; that the 9.07 acres of the best land would be taken and the location of the levee would render the farm unsightly. The amount of the verdict of the jury was approximately one half of that which appellants' witnesses stated the damages were.

The record does not sustain respondent's contention that the verdict was against the weight of the evidence. In fact, the record justifies the assertion that the verdict was supported by the greater weight of the testimony. Furthermore respondent's evidence in some respects...