Siemers v. St. Louis Electric Terminal Ry. Co.

• Decision Date: 18 April 1941
• Docket Number: 37065
• Parties: Edmond L. Siemers and Adele W. Pelligreen v. St. Louis Electric Terminal Railway Company, Appellant
• Court: Missouri Supreme Court

155 S.W.2d 130

348 Mo. 682

Edmond L. Siemers and Adele W. Pelligreen v. St. Louis Electric Terminal Railway Company, Appellant

No. 37065

Supreme Court of Missouri

April 18, 1941

Rehearing Denied July 25, 1941. Motion to Transfer to Banc Overruled October 30, 1941.

Appeal from Circuit Court of City of St. Louis; Hon. David J Murphy, Judge.

Reversed and remanded.

Anderson Gilbert, Wolfort, Allen & Bierman for appellant.

(1) Instruction 1 is erroneous in the following particulars: (a) Lines 6, 7 and 8 (Abs. p. 237) are as follows: "the extent, if any, of the loss of rents sustained by plaintiffs due to the loss of tenants, if you so find from the evidence;" assumption of disputed facts is error. Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562; Smith v. Harbison-Walker Refractories Co., 340 Mo. 389, 100 S.W.2d 909; Kirkham v. Jenkins Music Co., 340 Mo. 911, 104 S.W.2d 234; Clark v. Atchison & Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 143. (b) This instruction is also erroneous in that it assumes that there was any excavation along Franklin Avenue adjacent to plaintiffs' foundation, the portion of the instruction referred to being lines 17, 18, 19, 20 and 21, on page 237 of the abstract, as follows: "the extent, if any, to which plaintiffs' land and premises have been deprived of lateral support, along Franklin avenue and Twelfth street in connection with the construction of the subway and the railroad therein." (c) The instruction is erroneous in submitting to the jury permanent injury to the building; that claim for damages had been withdrawn before the commissioners, and the withdrawal was not excepted to in the exceptions to the commissioners' report. A claim abandoned cannot form the basis for recovery or defense. Ryan v. Met. Life Ins. Co., 30 S.W.2d 190; Linder v. Cape Brewery Co., 131 Mo.App. 680. The court refused defendant's Instruction J withdrawing any claimed permanent injury to the building. (d) The plaintiffs could in no event recover for interference with access to their property except such as was a direct interference in front of the plaintiffs' property. There was no dispute that when Franklin Avenue was completed, January, 1932, there was access through that source to the general system of streets, nor that in April, 1932, there was access on Twelfth Street along plaintiffs' property connecting with Franklin Avenue. The Missouri cases are uniform in holding that there is no liability for interfering with access unless the property abuts on the portion with which the interference is made. Arcadia Co. v. St. Louis, 326 Mo. 273, 30 S.W.2d 995; Cummings Realty & Inv. Co. v. Deere & Co., 208 Mo. 66, 106 S.W. 496. The court refused to give defendant's requested Instruction I so declaring. (e) This instruction does not restrict damages to interference with access different in character than that of other property owners along the subway and widened street. The plaintiffs did not show that their interference of access was different in character than the interference with access of other property owners along the line of the subway and widened street and hence cannot recover for such interference of access. Ruckert v. Railway Co., 163 Mo. 261; Nagel v. Railway Co., 167 Mo. 89. The court refused defendant's requested Instruction H so declaring. (2) Where testimony is in possession of a party to a suit, and no explanation is made for not producing it, the presumption is that the testimony would be unfavorable for such party. Tichenor v. Bowman, 135 S.W.2d 324; Conrad v. Diehl, 344 Mo. 811, 129 S.W.2d 870; McCollum v. Watts, 319 Mo. 869, 5 S.W.2d 420. The court refused to give defendant's Instruction E so instructing the jury. The plaintiffs did not offer in evidence the leases or the bank deposits or any other records showing receipt of the rents claimed by the plaintiffs.

Reardon & Lyng and J. B. Steiner for respondents.

(1) The first thirteen lines of Instruction 1 is the usual instruction on the measure of damages, in damage to property cases, that is, the difference in market value of the property before and after the project is completed, and if the jury finds the property is damaged, then the balance of the instruction covers the elements of damages the jury may take into consideration in reaching a verdict. The instruction must be considered as a whole and the appellant cannot pick out parts thereof and attack them singly as if those parts were standing alone. City Water Co. v Hunter, 6 S.W.2d 565; Railroad Co. v. Cortan Real Estate Co., 204 Mo. 565, 103 S.W. 519; Prairie Pipe Line Co. v. Ship, 305 Mo. 663, 267 S.W. 647; State ex rel. State Highway Comm. v. Haid, 332 Mo. 606, 59 S.W.2d 1057; Rishel v. Kansas City Pub. Serv. Co., 343 Mo. 1201, 129 S.W.2d 851. (2) In order to give to the respondents full accessibility to and from their property here in question the subway project would have to be completed to leave them with the same accessibility as they had prior to the project. Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562; Smith v. Harbison-Walker Refractories Co., 340 Mo. 389, 100 S.W.2d 909; Kirkham v. Jenkins Music Co., 340 Mo. 911, 104 S.W.2d 234; Clark v. Atchison & Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Smith v. Bridge Co., 326 Mo. 109, 30 S.W.2d 1077; McDonald v. Kansas City Gas Co., 332 Mo. 356, 59 S.W.2d 37; Larey v. M. K. & T. Ry. Co., 333 Mo. 949, 64 S.W.2d 684; Jenkins v. Mo. State Life Ins. Co., 334 Mo. 941, 69 S.W.2d 666; Williams v. Public Serv. Co., 335 Mo. 335, 73 S.W.2d 199; Burton v. Phillips, 7 S.W.2d 712; Windsor v. McKee, 222 S.W. 65; Armstrong v. Scullin Steel Co., 268 S.W. 386; Mahany v. Kansas City Rys. Co., 254 S.W. 16; Lewis v. Ry. Co., 50 S.W.2d 122; Willard v. Robertson, 129 S.W.2d 911; Schopp v. St. Louis, 117 Mo. 131, 22 S.W. 898; Siemers v. St. Louis Elec. Term. Ry. Co., 343 Mo. 1201, 125 S.W.2d 865. (a) While there was admittedly excavation in Franklin Avenue, and while said excavation was not as extensive as that in Twelfth Street, yet as to whether or not the excavation in Franklin Avenue and in Twelfth Street deprived the Siemers' property of lateral support, were questions for the jury properly submitted under Instruction 1 and the said lines 17, 18, 19, 20 and 21 of the abstract page 237 therein. There is substantial evidence to support the finding of the jury. Therefore, the instruction does not assume excavation along Franklin Avenue or along Twelfth Street; hence there was no assumption of lateral support. Lewis v. Ry. Co., 50 S.W.2d 122; Willard v. Robertson, 129 S.W.2d 911. (b) The evidence clearly shows that the building in question was injured, damaged and had to be razed as a result of said damage. The fact that plaintiffs may have withdrawn certain evidence from the commissioners, and even though properly in evidence in this cause, would not constitute error. A trial in circuit court under Sections 1340-1349, Revised Statutes 1929, is a trial de novo before a jury. Linder v. Cape Brewery & Ice Co., 131 Mo.App. 681, 111 S.W. 600; Ryan v. Met. Life Ins. Co., 30 S.W.2d 190; State ex rel. Union Electric L. & P. Co. v. Bruce, 66 S.W. 847; So. Mo. & A. Ry. Co. v. Woodward, 193 Mo. 656, 92 S.W. 470; St. Louis, I. M. & So. Ry. Co. v. Pfau, 212 Mo. 398, 111 S.W. 10; School District v. Improvement Co., 249 S.W. 51, 53. The restoration of water and sewer connections were proper elements of damage in this cause. Siemers v. St. Louis Electric Term. Ry. Co., 343 Mo. 1201, 125 S.W.2d 865. (c) Lines 24 to 29 of Instruction 1 do not constitute a comment on the evidence. Said lines merely point out elements of damages: (1) damages to the building by the removal of foundation stone or walls; (2) damages to the building by the removal of lateral support, which were submitted to the jury under the evidence presented to the jury. These are elements of damages submitted to the jury under lines 24 to 29 and as part of the whole instruction. Cases cited under (1); Siemers v. St. Louis Electric Term. Ry. Co., 343 Mo. 1201, 125 S.W.2d 865; Schopp v. St. Louis, 117 Mo. 131, 22 S.W. 898. (d) Respondents are entitled to loss of rents from the time their tenants left the premises until the completion of the project, at which time inaccessibility was removed. Siemers v. St. Louis Electric Term. Ry. Co., 343 Mo. 1201, 125 S.W.2d 865; Schopp v. St. Louis, 117 Mo. 131, 22 S.W. 898. (e) Respondents are entitled to consider the lack of accessibility to their property as being during the time of the construction of the project or subway; therefore defendant's Instruction I was properly refused. Cummings Realty & Inv. Co. v. Deere & Co., 208 Mo. 66, 106 S.W. 496; Arcadia Realty Co. v. St. Louis, 326 Mo. 273, 30 S.W.2d 995; Schopp v. St. Louis, 117 Mo. 131, 22 S.W. 898; Siemers v. St. Louis Elec. Term. Ry. Co., 343 Mo. 1201, 125 S.W.2d 865; Knapp, Stout & Co. v. Ry. Co., 126 Mo. 26, 28 S.W. 627; Bourg v. Manufacturers' Ry. Co., 245 S.W. 43; Chicago, R. I. & P. Ry. Co. v. Prigmore, 180 Okla. 125, 68 P.2d 90. (f) When plaintiffs proved that access to their property was interfered with, when both Franklin Avenue and Twelfth Street during the time the project was under construction, they made a prima facie case for the jury, and that the cases cited under (e) of appellant's brief do not apply to a subway and railroad built therein. Therefore Instruction H was properly refused. Nagel v. Lindell Ry. Co., 167 Mo. 89, 66 S.W. 1090; Cummings Realty & Inv. Co. v. Deere & Co., 208 Mo. 66, 106 S.W. 496; Ruckert v. Grand Ave. Ry. Co., 163 Mo. 260, 279, 63 S.W. 814; Siemers v. St. Louis Elec. Term. Ry. Co., 343 Mo. 1201, 125 S.W.2d 865. (2) Instruction 2 does not conflict with any instruction in this cause. It is a definition of market value; being a technical term, it is proper to define the term. Lewis, Eminent...