North Arkansas & Western Railway Co. v. Cole

• Decision Date: 25 October 1902
• Citation: 70 S.W. 312,71 Ark. 38
• Parties: NORTH ARKANSAS & WESTERN RAILWAY COMPANY v. COLE
• Court: Arkansas Supreme Court

70 S.W. 312

71 Ark. 38

NORTH ARKANSAS & WESTERN RAILWAY COMPANY v. COLE

Supreme Court of Arkansas

October 25, 1902

Appeal from Washington Circuit Court, JAMES M. PITTMAN, Judge.

Reversed.

STATEMENT BY THE COURT.

Action by North Arkansas & Western Railway Company to condemn a right of way across land owned by John and May Cole, and to have the damages caused by the taking of the right of way and the construction of the railroad assessed. On the trial the jury assessed the damages at the sum of $ 1,976. The court gave judgment for that sum, and the company appealed.

Judgment reversed and new trial ordered.

Stuckey & Williams and E. S. McDaniel, for appellant.

It was error to allow a juror to sit who had married the sister of the daughter-in-law of one of the parties. Sand. & H. Dig § 4256. Cf. 12 Ark. 657; Const. Ark. art. 7, § 20; Sand. & H. Dig. § 1302; 1 Hill, 654. It was error to refuse to allow appellant to prove the effect of the railroad upon the rate of insurance on the property in question. 33 N.W. 704; 2 L. R. A. 217; Mills, Em. Dom. § 497; 3 Ell Rys. § 996. The court erred in giving the tenth instruction prayed by appellees. 66 Ark. 506; Const. Ark art. 7, § 23; 37 Ark. 251; 58 Ark. 108. It was error to refuse to instruct the jury that appellees were required to cut ditches or use other reasonable efforts to minimize their damage. 1 Suth. Dam. 148; 6 Am. St. Rep. 356; 38 Ark. 357; 66 Ark. 271.

Walker, Walker & Walker, for appellees.

By relation by affinity is meant that which exists by marriage between one spouse and the blood relations of the other. 1 Bl. Com. 434; 2 Barb. Ch. 333; 45 N.Y.S. 84; 47 La. 248; 43 Am. Rep. 290; Peck (Tenn.), 374; Black, Law Dict.; Rap. & Law. L. Dict. No relationship by affinity existed in this case. 17 Am. & Eng. Enc. Law, 1125; 38 Me. 44; 4 Watts (Pa.), 218; 140 Mass. 425; 52 Tex. 481; 43 Am. Rep. 290; Bac. Abr. "Marriage, A"; Bouv. L. Dict.; Enc. Brit.; Just. Inst. 1, 10, 6; Taylor, Civ. Law, 339; 1 Bish. M. & D. § 314; 1 Bl. Comm. 435; 47 O. St. 575. There was no error in excluding evidence as to insurance rates. 43 N.W. 285. There was no error in the court's refusal to give the instruction asked as to duty of appellees. 41 Ark. 202; 98 U.S. 403; 51 Ark. 354.

OPINION

RIDDICK, J., (after stating the facts).

This is an appeal by a railway company from a judgment for damages for a right of way across a farm of 250 acres. It is not denied that the company had the right to condemn or that there is evidence to sustain the judgment, but the company saved exceptions to certain rulings of the presiding judge at the trial, and seeks a reversal of the judgment on the ground that these rulings were erroneous and prejudicial.

The first contention is that the court erred in not sustaining the objections of the company to juror Moulden. The half sister of Moulden's wife married a son of the defendants, John and May Cole, and counsel say that Moulden was thus related by affinity to the defendants, and for that reason was disqualified to serve as a juror.

The case of Kelley v. Neely, 12 Ark. 657, comes nearest to being an authority in favor of the contention of plaintiff, for it was held in that case that relationship by affinity existed between a husband and a spouse of a blood relation to his wife; but even that case falls short of showing that this juror was related to the defendants by affinity, for neither of the defendants were married to a blood relation of the juror's wife. Affinity is the tie which arises from marriage between the husband and the blood relations of the wife, and between the wife and the blood relations of the husband. There is no affinity between the blood relations of the husband and the blood relations of the wife. The defendants, John and May Cole, were related by affinity to the wife of their son, but they were not related by affinity to her blood relations; much less were they thus related to the juror Moulden, who was only a husband of one of the blood relations. 1 Am. & Eng. Enc. Law (2d. Ed.), 912; 17 Am. & Eng. Enc. Law (2d Ed.), 1125, and cases cited.

It is clear that no such relationship was shown between the juror and the defendants as to disqualify him as a matter of law, though the court could, in the exercise of its discretion, have excluded him from the jury on that ground.

The next contention of the railroad company is that the court erred in rejecting evidence offered by it at the trial.

The defendants had on their farm, across which the railroad seeks to condemn a right of way, a valuable barn, in which they were accustomed to store the hay raised on the farm, and where they also kept horses and other live stock. The track of the railroad across the farm passed in about 105 feet of this barn, and defendants contended that the value of the barn was lessened by reason of increased risk arising from the exposure of this barn to fire from passing trains. To meet this phase of the case, the company offered evidence to show that the distance of the railroad from the barn was so great that it would not affect the rate of insurance upon the barn. It offered to prove by a fire insurance agent, who was agent for a number of fire insurance companies doing business in this state, and who was familiar with the business, that, as the barn was situated more than one hundred feet from the railroad track, the rate of insurance thereon would not be affected by the construction of the road. The defendants objected to this evidence, and the court excluded it. The company now contends that this ruling was erroneous and prejudicial to its rights. There is some conflict in the decisions of the courts of the different states on the admissibility of such evidence. The ruling of the presiding judge is supported by a decision of the supreme court of Iowa in the case of Pingery v. Railway Co. 78 Iowa 438, in which it is held that rates of fire insurance have no bearing on the issues of a case of this kind, and that evidence of the kind offered here should be excluded. But in an earlier case the learned judges, of the same court, in discussing a similar question, said: "While plaintiffs were not entitled to recover the increased cost of insurance on the property, and did not seek to recover therefor as an item of damages, it is plain that the market value of the property might be materially lessened by reason of it. Prudent business men, as a rule, insure their property; and property which, owing to its location or surroundings, is not insurable is necessarily of less value than it would be if insurable, and the cost of insurance is a matter which always affect its value." Eslich v. Railway Co., 75 Iowa 443, 39 N.W. 700.

Following this line of reasoning, the courts of several of the states have held that the landowner may show, and the jury consider, as an element more or less affecting the market value of the land, the fact that the rates of fire insurance are increased by the proximity of the railroad. Cedar Rapids, I. F. & N. Ry. Co. v. Raymond, 37 Minn. 204, 33 N.W. 704.

Now, if it be true that the landowner may show the increased cost of insurance as a matter bearing on the question of damages, why may not the railroad company, when the landowner claims damages by reason of increased exposure to fire, show to the jury, as a matter bearing on that question, the fact that the rates of insurance will not be...