School District of Clayton v. Kelsey

• Decision Date: 08 July 1946
• Docket Number: No. 39695.,39695.
• Parties: THE SCHOOL DISTRICT OF CLAYTON ET AL. v. CYRENE KELSEY, Appellant.
• Court: Missouri Supreme Court

196 S.W.2d 860

THE SCHOOL DISTRICT OF CLAYTON ET AL. v. CYRENE KELSEY, Appellant.

No. 39695.

Supreme Court of Missouri.

Division One, July 8, 1946.

Opinion Modified on Court's own Motion and Motion for Rehearing or to Transfer to Banc Overruled, September 9, 1946, in Opinion Filed.

Motion for Rehearing or to Transfer to Banc on Modified Opinion Overruled, October 14, 1946.

Appeal from Circuit Court of St. Louis County. — Hon. Raymond E. LaDriere, Judge.

AFFIRMED.

Harold C. Ackert for appellant; Ackert, Giesecke & Waugh of counsel.

(1) It is jurisdictional that as a condition precedent to a condemnation suit there must be a failure to agree on price. City of St. Louis v. Glasgow, 254 Mo. 262, 162 S.W. 596; United States v. Reed, 56 Mo. 565; Kansas City, etc., R. Co. v. Campbell, 62 Mo. 585; State ex rel. v. Williams, 69 S.W. (2d) 970. (2) The evidence affirmatively shows that the requirement referred to above was not met. (3) The evidence shows that the condemnation was not in good faith and for a public use and purpose. (4) This court in reviewing the evidence under this specification of error is not bound by the finding of the trial court, but may make its own findings from the entire record. Mo. R.S.A., Sec. 847.114. (5) Evidence of sales of other property in the neighborhood is admissible on the question of value. City of St. Louis v. Sheahan, 327 Mo. 305, 36 S.W. (2d) 951; Kansas City v. Boruff, 295 Mo. 28, 243 S.W. 167; St. L.K. & N.W.R. Co. v. Clark, 121 Mo. 169, 25 S.W. 192. (6) "Expert" testimony is not conclusive on the question of value. In re Sixth Street, 276 Mo. 158, 207 S.W. 503. (7) Defendant's Exhibit 5 was a legally enforceable contract of sale and not a mere offer. Levine v. Humphreys, 297 Mo. 555, 249 S.W. 395. (8) The court erred in refusing to give to the jury defendant's offered Instruction A. The verdict of the jury gives the plaintiffs a ten-day option to buy. Sec. 1506, R.S. 1939; State ex rel. v. Deutschman, 346 Mo. 755, 142 S.W. (2d) 1025; Union Electric v. Snyder, 65 F. (2d) 297. (9) Failure to instruct the jury to include in their verdict just compensation for this option violates the State and Federal Constitutions. Mo. Constitution of 1945, Art. I, Secs. 26, 28; Fourteenth Amendment, U.S. Constitution. (10) The trial court erred in not holding that the damages awarded were inadequate.

John A. Nolan for respondents.

(1) The petition alleged, and the court found, that prior to filing of suit, plaintiff had offered to purchase the land, and defendant had refused to sell. No further negotiations were necessary. United States of America v. Reed, 56 Mo. 565; Southern Ill. v. Missouri Bridge Co., 194 Mo. 175, 92 S.W. 475; Stone v. Southern & Mo. Bridge Co., 27 S. Ct. 615, 206 U.S. 267, 51 L. Ed. 1057. (2) The trial court specifically found that the purpose for which the land was sought to be condemned was a "public purpose." The good faith or motive of the plaintiff in the proceeding is not subject to judicial review or consideration. City of Kirkwood v. Venable, 173 S.W. (2d) 8, 351 Mo. 460; 1 Lewis on Eminent Domain (3 Ed.), sec. 370, p. 678; McQuillin on Municipal Corporations (2 Ed.), sec. 1588; 20 C.J. 552, sec. 38. (3) The condemnation proceedings are proceedings at law and not in equity. Where there is substantial evidence upon which the trial court bottomed its findings of fact, such findings cannot be disturbed by this court. City of St. Louis v. Semple, 199 S.W. 967. (4) Errors, if any, not going to the jurisdiction of the court in appointing the commissioners, is not reviewable here, because defendant filed exceptions to the commissioners' report, which were by the trial court sustained, a jury trial ordered, and verdict returned in behalf of the defendant. Southern Ill. v. Missouri Bridge Co., 194 Mo. 175, 92 S.W. 475. (5) Questions not raised by appellant in its motion for a new trial are not before the appellate court for review. Young v. Wheelock, 64 S.W. (2d) 950, 333 Mo. 992; Brainard v. Railroad, 319 Mo. 898, 5 S.W. (2d) 18. (6) Defendant's Exhibit 5 was properly excluded, because it was a mere executory contract to sell and not a consummated sale. Thompson on Real Property (Perm. Ed.), chap. 57, sec. 4550, pp. 454-461; sec. 4554, pp. 484-490. (7) Even if Exhibit 5 was, in law, an enforceable contract for the breach of which an action for specific performance or damages might have been maintained, it was nevertheless not a bona fide consummated sale of defendant's land described therein. (8) Even if Exhibit 5 was admissible under any rule of evidence, it was harmless error, as ample evidence was before the jury from other sources, to the value of $200 per front foot on the property sought to be condemned, and Exhibit 5 would only have been cumulative on that point. (9) Instruction A offered by defendant, was properly refused by the court, because the instruction is a mere abstract statement not based upon any facts in evidence and not requiring the jury to find any facts as a condition precedent to assessing damages, except the mere taking of the property. (10) The instruction would have permitted the jury, in its consideration of the damages to be awarded, the right to speculate on whether the School District would or would not elect to take the property by paying the damages the jury might fix, when there was no evidence before the jury as to what the School District might do or omit to do in that situation. (11) The instruction would have permitted the jury to take into consideration, in fixing the damages, the statutory right of the district to dismiss the proceeding, if the damages assessed were excessive, and this right being purely statutory, available only after verdict, is not for consideration of the jury. (12) There being substantial evidence to support the finding and award of damages by the jury, this court should not disturb the verdict on the grounds of its inadequacy, unless the verdict is so shockingly inadequate that it can only be explained as the result of passion or prejudice. City of St. Louis v. Franklin Bank, 108 S.W. (2d) 636, 340 Mo. 383; City of St. Louis v. Smith, 30 S.W. (2d) 729, 325 Mo. 471; City of St. Louis v. Gerhart R. Co., 40 S.W. (2d) 661, 328 Mo. 103; Prairie Pipe Line Co. v. Shipp, 267 S.W. 647, 305 Mo. 663.

BRADLEY, C.

Plaintiff school district and the members of its board of education filed suit to condemn for school purposes certain described lots, owned by defendant, in the City of Clayton, St. Louis County. Commissioners were appointed; made report; both sides filed exceptions and damages were submitted to a jury. The jury assessed defendant's damages at $34,500, and judgment was entered on the verdict. The amount of damages fixed by the jury was paid into the registry of the court for defendant. Unsuccessful in motion for new trial defendant appealed.

Error is assigned (1) on overruling defendant's motion to set aside the order appointing commissioners and to quash their report; (2) on excluding defendant's exhibit No. 5; (3) on refusing defendant's instruction A; and (4) on refusing to grant a new trial on the ground that damages awarded were inadequate.

[1] The motion to set aside the order appointing commissioners and to quash their report was bottomed on the contentions that there was, prior to filing the petition, no bona fide effort made by plaintiffs to agree with defendant on the compensation to be paid for the land condemned, and that the suit to condemn was not brought in good faith, and that there was no public need for the property. Sec. 1504, R.S. 1939, Mo. R.S.A., Sec. 1504, pertains to condemnation proceedings and among other things, provides that in case land is sought to be appropriated and the condemnor "and the owners cannot agree upon the proper compensation to be paid", then condemnation proceedings may be instituted. Inability of the parties to agree upon compensation to be paid is jurisdictional and must be pleaded. State ex rel. State Highway Commission v. Williams et al. (Mo. App.), 69 S.W. (2d) 970, l.c. 971, and cases there cited. It follows that if it is necessary to so plead, then it is necessary to so prove, and such is conceded.

[2] The petition alleged and the court found that plaintiffs and defendant had been unable to agree upon the compensation to be paid, but defendant contends that there was no substantial evidence to support such finding. On a hearing of the motion to set aside the order appointing the commissioners and to quash their report, which motion was based on the contention that there was no bona fide effort to agree on compensation, etc., defendant called as witnesses the president of the board of education, the superintendent of the Clayton schools and the vice president of the real estate company which handled the recent sale to the school district of the Wagoner land, near plaintiff's land. At a meeting of the board of education April 19, 1944 (petition was filed July 28, 1944), Mr. Bracken, the superintendent, was authorized to offer defendant $15,000 for her land, lots 5 and 6, and 11 and 12, block 19, Hanley's Addition, Clayton. The offer was made by letter and was refused by a letter in reply. It appeared from the evidence on the motion that in making an effort to agree upon the compensation to be paid for the Wagoner land, interested parties appeared before the board of education, and other negotiations and efforts were made to agree. In defendant's case there was no direct evidence of effort at negotiation except the letter offering $15,000 and the reply refusing the offer. But Mr. Friday, president of the board of education, testified that defendant was advised by letter that she could come before the board if she wanted to. And Mr. Friday, in response to a question by counsel for defendant, said that "somebody in the (board) meeting (June 19, 1944) mentioned that Miss Kelsey (defendant) not only turned down the $15,000 offer, but she said she...