Robinson v. City of St. Joseph

• Decision Date: 05 January 1903
• Citation: 71 S.W. 465,97 Mo.App. 503
• Parties: EMILY I. ROBINSON et vir, Respondents, v. CITY OF ST. JOSEPH, Appellant
• Court: Kansas Court of Appeals

71 S.W. 465

97 Mo.App. 503

EMILY I. ROBINSON et vir, Respondents, v. CITY OF ST. JOSEPH, Appellant

Court of Appeals of Missouri, Kansas City

January 5, 1903

Appeal from Buchanan Circuit Court.--Hon. A. M. Woodson, Judge.

AFFIRMED.

Judgment affirmed.

Kendall B. Randolph for appellant.

(1) The court erred in sustaining the motion to strike out parts of the answer. There can be no doubt but that such ruling would have made a material difference in the verdict. As the case now stands these parties have recovered $ 3,000 from the city for grading around their property, in the outskirts of the city, with a small seven-room house and some sheds on it. Donnell v. Wright, 147 Mo. 639; State ex rel. v Branch, 134 Mo. 592; Short v. Taylor, 137 Mo 517; State ex rel. v. St. Louis, 145 Mo. 551; Spradling v. Conway, 51 Mo. 51; McKee v Railway, 49 Mo. App., l. c. 180; Hulett v. Railway, 80 Mo.App. 87. (2) The court erred in admitting in evidence the photographs, as they were not shown to be correct representations of the situation. Baustian v. Young, 152 Mo. 317. (3) The court erred in permitting witness Giles to testify as an expert. He possessed none of the qualifications of an expert. He was not shown to possess any knowledge except what might have been expected of any of the jurors. Such evidence is misleading and was prejudicial to the defendant. Turner v. Hoar, 114 Mo. 335; Goins v. Railroad, 47 Mo.App. 173; Helfenstein v. Medart, 136 Mo. 595; Naughton v. Stagg, 4 Mo.App. 271; Thompson v. Ish, 99 Mo. 160; Gates v. Railway, 44 Mo.App. 488; Benjamin v. Railway, 133 Mo. 274. (4) The court erred in not permitting the witnesses to answer defendant's questions in reference to Penn street, the object of which was stated by defendant's counsel to be, "to show the difference about Penn street being graded or not graded as to what effect it has on the property." (5) The court also erred in ruling and stating in the presence of the jury as follows: "The question is, what was the property worth immediately before this grading was done and immediately after. Penn street is just the same as if there was a ravine there." Why didn't the court say, "Penn street is just the same as if it were on a level with the property?" That would have been perfectly fair to plaintiffs. Bank v. Armstrong, 92 Mo. 265; Rickroad v. Martin, 43 Mo.App. 597. (6) The court erred in giving, on behalf of plaintiffs, instruction No. 2. This instruction opens with a dissertation on the law with the evident purpose of inflaming the jury with the idea that the city had willfully violated the Constitution, and should be punished therefor. What could the jury understand by the term "as provided by law?" Bradley v. Railroad, 138 Mo. 293. (7) Defendant's refused instruction marked "A" should have been given. It states the law correctly governing damages in grading cases.

H. S. Kelley for respondent.

(1) The first matter complained of by appellant is, that the court erred in sustaining the motions to strike out parts of defendant's amended answers. We do not think so. (2) The photographs were shown to be correct representations of the situation, and were properly admitted in evidence. Baustain v. Young, 152 Mo. 317; Kent v. St. Joseph, 72 Mo.App. 42. (3) Giles was not an expert real estate dealer, but he was an intelligent citizen, an ex-alderman of the city, and said he knew something about the value of real estate in that neighborhood--was as much acquainted with the value of real estate as any man who was not a real estate man. With this qualification he was permitted to testify. Tate v. Railroad, 64 Mo. 149; Schaaf v. Fries, 77 Mo.App. 346; Railroad v. Calkins, 90 Mo. 538; Railroad v. DeLissa, 103 Mo. 125; Hosher v. Railroad, 60 Mo. 303; Thomas v. Mul, 43 Mo. 58; State v. Darrah, 152 Mo. 522. (4) As to the fourth, fifth and sixth points made by appellant, we will simply say that they are all of the same nature and effect as the first, and present the same theory contended for by defendant.

OPINION

SMITH, P. J.

The plaintiff, Emily I. Robinson, was the owner of lot 24, block 13, in Wyatt's addition to the defendant city, and the other plaintiff, H. N. Robinson, was the owner of lot 23 in said block and addition to said defendant city. Penn street runs east and west through said city of St. Joseph and is intersected by Twenty-eighth street running north and south. Plaintiff's lots front on Penn street 100 feet, and on Twenty-eighth street 127 feet, and are on the northwest corner of said named streets.

In the year 1890 the defendant city established the grade on said Penn and Twenty-eighth streets which at their intersection was the same. Shortly after the establishment of the said grade, the defendant by ordinance caused the natural surface of Penn street at said intersection and in front of plaintiff's lots to be brought thereto and thereby made a cut of twenty feet in front of plaintiff's lots so that on the boundary line between said lots and Penn street there was a perpendicular earthen bank something like twenty feet in height. Prior to the establishment of said grade the plaintiffs, who are husband and wife, erected a mansion house on said lots, together with other buildings used therewith, and also planted fruit and ornamental trees, shrubs, etc., thereon.

Each of the plaintiffs sued the defendant for the injury to their respective lots occasioned by the grading of Penn street and recovered a judgment, one for $ 1,200 and the other for $ 300.

More than ten years later the defendant city by a further ordinance caused Twenty-eighth street north of Penn street, and the alley in the rear of the plaintiff's lots, to be brought to grade which required a cut of eighteen feet. To recover the damages for the injury thus caused to their lots, plaintiffs each brought separate actions against the defendant city but by agreement of all the parties the two actions were consolidated and tried as but a single action.

The defendant's answer was to the effect that the plaintiffs had in 1890 recovered said judgments against the defendant city for the injuries occasioned to their said lots by the grading of Penn street and that if they had used the amount recovered by that judgment, as contemplated by it, for the purpose of improving said lots, or in ameliorating their damaged condition, that no damage would have resulted from the grading of Twenty-eighth street and the alley. The court on motion of the plaintiffs struck this defense from the answer, and this action of the court, it is now contended, was error, for which we should reverse the plaintiff's judgment. It was optional with the plaintiffs whether or not they would expend the amount of damages recovered for the injuries occasioned to their lots by the grading of Penn street in improving and ameliorating the condition to which it had been reduced. If they elected to permit the lots to remain in the condition which the defendant's improvement of the street had left them, they had the undoubted right to do so, and it could in no event be of any concern to the defendant the one way or the other. This action can have no relation or connection with the former one. The two are separate and distinct, and neither is in any way dependent on the other. The damages recovered in this action are solely for the injuries occasioned to the plaintiff's lots by the grading of Twenty-eighth street and the alley.

The measure of damages to which plaintiffs were entitled to recover was the difference between the market value of the lots immediately before the injury took place and their value after the injury was completed. Martin v. Railway, 47 Mo.App. 452; Taylor v. Railway, 38 Mo.App. 668; Babb v. Curators, 40 Mo.App. 173; Slattery v. St. Louis, 120 Mo. 183, 25 S.W. 521; Sheehy v. Cable Co., 94 Mo. 574; Trust Co. v. Bambrick, 149 Mo. 560, 51 S.W. 706. The application of this rule requires the exclusion from consideration the injuries which resulted from the improvement of Penn street. It confines the inquiry to a narrow limit--to the ascertainment of the difference between the market value immediately before the injury occurred and that after it was complete.

If the market value of the lots by reason of the injury occasioned by the improvement of Penn street had been reduced to, say $ 2,500, and that was their value immediately before the injury to them occasioned by the improvement of Twenty-eighth street and...