Small v. Missouri State Highway and Transp. Com'n, No. 58169

• Citation: 815 S.W.2d 495
• Decision Date: 24 September 1991
• Docket Number: No. 58169
• Parties: Jimmie SMALL, Plaintiff/Appellant, v. MISSOURI STATE HIGHWAY AND TRANSPORTATION COMMISSION, Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 495

815 S.W.2d 495

Jimmie SMALL, Plaintiff/Appellant, v. MISSOURI STATE HIGHWAY AND TRANSPORTATION COMMISSION Defendant/Respondent.

No. 58169.

Missouri Court of Appeals,

Eastern District,

Northern Division.

Sept. 24, 1991.

Jimmie Small, pro se.

Paul R. Sterrett, Paul R. Ferber, Rich Tiemeyer, Kirkwood, for defendant/respondent.

AHRENS, Judge.

In this action for damages, appellant Jimmie Small appeals from a judgment in favor of respondent Missouri State Highway and Transportation Commission (Commission) on appellant's claim for damage to his property. We affirm.

Appellant owns a three hundred three acre farm in Knox County, Missouri. Part of appellant's farm is adjacent to Route K, a blacktop roadway. Commission has a right-of-way along Route K extending eighty feet from the center of the road to appellant's property line.

Appellant brought this action alleging that "in the Fall of 1983 and or Spring of 1984," Commission "was engaged in spraying on its State Route K ... and while so engaged its agents or employees caused destruction of timber of the lands of [appellant]...." Appellant further alleged, "the destruction of [appellant's] trees, brush, and shrubbery, resulted from a dangerous condition of State of Missouri right away [sic] bordering [appellant's] property due to application to said State property of chemicals, herbicides, 'spike'." Following a trial, the jury returned a unanimous verdict in favor of Commission.

In the first of his four points, appellant alleges the trial court erred in denying his motion for new trial, because the evidence supporting appellant's claim "was overwhelming and no reasonable jury would thereby rule in favor of [Commission], there exists no evidence which supports a Defendant [sic] decision, and such a ruling was against the weight of the evidence."

"The determination of whether a verdict is against the weight of the evidence is within the exclusive province of the trial court; on appeal this court does not weigh the evidence but determines whether sufficient evidence supports the verdict." Marshall v. Edlin, 690 S.W.2d 477, 479 (Mo.App.1985). In making that determination, "we view the evidence in the light most favorable to the verdict, considering only that which supports it, and disregarding contrary evidence and inferences." Roark Motor Lodge Interval Sales Corp. v. Lindner, 779 S.W.2d 684, 686 (Mo.App.1989); Marshall, 690 S.W.2d at 479.

Viewed in that light, the evidence was sufficient to support the jury's verdict. Appellant presented evidence that in October 1983, Commission employees were seen spraying from knapsack sprayers in the area where appellant's trees died. Commission, however, presented evidence that: (1) its employees were instructed not to apply Spike in that area; (2) Commission had no knapsack sprayers in October 1983; (3) where Commission used Spike along Route K, the herbicide was not sprayed, but was applied directly into the soil with a hose that extended no more than 25 feet from a tank on the truck; (4) the damaged tree nearest Route K in the area adjacent to appellant's property was 60 feet from the edge of the roadway; and (5) a contractor working for Lewis County Rural Electric Cooperative had applied Spike under powerlines adjacent to appellant's property. "The credibility of witnesses and the weight of the testimony are within the province of the jury and are not matters for appellate review." Jackson v. Premier Serv. Corp., 761 S.W.2d 648, 651 (Mo.App.1988).

Although appellant presented evidence that soil and vegetation samples taken from his property in August 1984, contained concentrations of Spike, there was no evidence establishing the concentration of Spike necessary to have destroyed any of appellant's trees, which varied in type and size.

Accordingly, there was sufficient evidence to support a determination that Commission employees did not apply Spike near appellant's property. Further, based on the evidence, the jury could reasonably have found that the level of Spike in the area was not responsible for the damage to appellant's property. Thus, the trial court did not err in denying appellant's motion for new trial on the basis that the verdict was against the weight of the evidence. Point one is denied.

Appellant's second point alleges the trial court erred in denying his motion for new trial, because during voir dire one juror "remained silent when asked a question regarding any blood relation he may have who was an employee of [Commission]," and appellant discovered that the juror "was blood relation" to a Commission employee. Appellant contends the failure to reveal the relationship "was an intentional concealment" which "resulted in bias and prejudice in the verdict."

During voir dire the trial court asked the venirepersons, "are any of you employees or members of your immediate families employees of the State Highway Commission?" Two venirepersons responded; one venireperson stated his father-in-law works for Commission, and the second venireperson stated he was a Commission employee. Juror Kenneth Klocke did not respond.

In his motion for new trial appellant asserted Klocke is a "blood relative" of a Commission employee, and appellant was prejudiced because Klocke "deliberately withheld that information to [appellant's] detriment." "Whether intentional or unintentional, the concealment of...