Smith v. Kansas City

• Decision Date: 26 March 1895
• Citation: 30 S.W. 314,128 Mo. 23
• Parties: Smith et al. v. Kansas City, Appellant
• Court: Missouri Supreme Court

30 S.W. 314

128 Mo. 23

Smith et al. v. Kansas City, Appellant

Supreme Court of Missouri, First Division

March 26, 1895

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

F. F Rozzelle and F. P. Walsh for appellant.

(1) The court erred in giving instruction number 3 for plaintiff. This instruction is in conflict with instruction number 4 given on behalf of defendant. Bluedorn v. Railroad, 108 Mo. 39; State v. Herrell, 97 Mo. 109. (2) Instruction number 3 for plaintiffs was was erroneous because: First. There was no evidence as to cost of restoring lot and improvements to the condition they were before the grading. Second. The testimony shows many of the improvements could not be lowered, but must be replaced with new improvements, and no deduction is authorized on account of old improvements being supplied by new improvements. Third. It authorized the jury to take into consideration as elements of damage the necessary destruction of any trees and shrubs and the cost of lowering and replacing the barn. There was no testimony to support this point. Duke v. Railroad, 99 Mo. 347. Fourth. The instruction authorizes the jury to take into consideration certain matters, if the jury deemed them "proper." Wilburn v. Railroad, 36 Mo.App. 203. Fifth. The uncontradicted evidence of plaintiffs' witnesses shows that the cost of grading and lowering the improvements would be greater than the diminution in the value of the property by reason of the grading of the street. Kansas City v. Morton, 117 Mo. 446. (3) This instruction was faulty because it singled out particular facts and directed the jury to consider them in estimating plaintiffs' damages. Railroad v. Stock Yards, 120 Mo. 559. (4) This instruction was erroneous because a comment on the evidence. Railroad v. Stock Yards, 120 Mo. 565, and cases there cited. (5) First. The court erred in sustaining a motion in the nature of a demurrer to strike out the whole of the second defense in the amended answer. Veil v. City of Independence, 116 Mo. 333. Second. Under the pleadings the judgment should have been for defendant. (6) The damages are excessive.

Botsford & Williams and Elliott & Burnham for respondents.

(1) The motion to strike out the second defense of the answer is not in the bill of exceptions, and no exception is saved to the action of the court in sustaining it, and its action will not be reviewed in the appellate court. (2) The admission in evidence of the cost of grading down plaintiffs' lot and lowering the improvements, and the giving by the court of plaintiffs' third instruction to the jury, were proper. Taylor v. Railroad, 38 Mo.App. 668; Railroad v Waldo, 70 Mo. 629; City of Kansas v. Railroad, 102 Mo. 633; Railroad v. Story, 96 Mo. 612; Railroad v. Shambough, 106 Mo. 558; Topeka v. Martineau, 42 Kan. 388; Chicago v. Taylor, 125 U.S. 169; Tyson v. Milwaukee, 50 Wis. 78; Hartshorn v. Chaddock, 17 L. R. A. 426; Barrick v. Schiffendecker, 123 N.Y. 52; Argotsinger v. Vines, 82 N.Y. 308; Holt v. Sargent, 15 Gray, 97. (3) If the court committed error in giving plaintiffs' third instruction, then that error was waived by defendant asking the court to give the closing paragraph of its first instruction given by the court, which paragraph enunciates the same proposition conversely that is stated in plaintiffs' third instruction. It is well settled that an appellant can not complain of error in instructions given at the instance of the respondent, if those given at his instance contain the same error. McGonigle v. Dougherty, 71 Mo. 259; Holmes v. Braidwood, 82 Mo. 610; Thorpe v. Railroad, 89 Mo. 650. (4) There is no conflict between plaintiffs' third instruction and appellant's fourth instruction. Instructions numbered 1, 2 and 5, given for plaintiffs, as well as those given for appellant, all told the jury that it was the difference in the market value of the property before and after the grading that was to be their guide and was to determine the amount of damages, if any, that were to be awarded to the plaintiffs.

OPINION

Brace, P. J.

The plaintiffs are husband and wife and sue the city for damages to the property of the wife abutting on Locust street in said city.

The petition charges that the plaintiff, Mary E. Smith, since the twenty-first day of February, 1890, has been, and still is, the owner in fee simple of the premises described in the petition. That on March 2, 1889, the city, by ordinance of that date, established a grade for said street in front of plaintiff's property below the grades of the natural surface thereof, and on the third day of January, 1890, it provided by ordinance for cutting down said street in front of plaintiff's property to the grade thus established; that in pursuance of said ordinance the city, through its contractor, "in the months of September and October, 1890, made a deep cut in said Locust street in front of plaintiffs' property and without plaintiffs' consent, of the depth of fourteen feet, leaving the residence of the plaintiffs and the other improvements of plaintiff thereon over fourteen feet above the street and wholly inaccessible to or from the same, to the damage of the plaintiffs in the sum of $ 5,000."

The answer was a general denial, with the following special plea:

"Defendant for further answer to plaintiffs' petition says that, at the time of the purchase of the real estate described in plaintiffs' petition, the grade of said street had been established, and a portion of the same had been graded; that at the time of the purchase and conveyance of said real estate to plaintiffs, they knew that a portion of said street had been graded, and knew that the same was to be graded in front of their property, and assented thereto; that they knew that there was to be a cut in front of the property purchased by them of fourteen feet. By reason of which, defendant says, plaintiffs are estopped from claiming any damages by reason of the grading of the street in front of the property herein aforesaid, and having fully answered, asked to be discharged with costs."

It appears from the additional abstract filed by respondent herein that this special plea was on motion stricken out, but it does not appear, either from appellant's or respondent's abstract, that the action of the court in striking it out was excepted to, nor is such motion preserved in the bill of exceptions, nor is any exception taken to the action of the court thereon, either in the motion in arrest or for new trial. The case was tried on the issue made by the general denial, and only the errors assigned on the trial of that issue are before us for review. Jefferson City v. Opel, 67 Mo. 394; Mockler v. Skellett, 36 Mo.App. 174; Railroad v. Carlisle, 94 Mo. 166, 7 S.W. 102; Williams v. Railroad, 112 Mo. 463, 20 S.W. 631.

The plaintiffs introduced evidence sustaining the allegations of the petition and tending to prove that the cost of lowering the grade of her lot and letting down her improvements and restoring the same to a like relative position to the reduced grade of the street that they occupied to the street before the cut was made, would be from $ 4,000 to $ 6,000; and also evidence tending to prove that the market value of the premises had been depreciated from $ 3,500 to $ 5,000 by the lowering of the grade. The defendant introduced evidence tending to prove that the effect of the grading was not to depreciate but to increase the market value of the property.

The jury returned a verdict for the plaintiff, assessing her damages at the sum of $ 2,750, and from the judgment rendered thereon, the defendant appeals.

The court gave the following instructions touching the measure of damages:

For the plaintiffs:

"1. The jury are instructed that if you find and believe from the evidence that the defendant city, by its contractor, Patrick Lyons, cut down and lowered the grade of Locust street in Kansas City, Missouri, in front of the property described in the petition, during the months of September and October 1890, and that at the time the plaintiffs were husband and wife, and that plaintiff, Mary E. Smith, was the owner of said property, and that the plaintiffs were not made parties to any proceedings to assess damages arising from said grading, and that none has been paid them, and shall further find that the market value of said property was depreciated by said grading, then your verdict should be for the plaintiffs.

"2. The jury are instructed that if you find for the plaintiffs your verdict should be for such sum, not to exceed five thousand dollars ($ 5,000) as you may find and believe from the evidence would equal the amount that the market value of such property was...