Southern Missouri and Arkansas Railway Company v. Woodard, McKinney
| Decision Date | 26 February 1906 |
| Parties | SOUTHERN MISSOURI AND ARKANSAS RAILWAY COMPANY et al., Appellants, v. WOODARD, McKINNEY et al |
| Court | Missouri Supreme Court |
Appeal from Ripley Circuit Court. -- Hon. J. L. Fort, Judge.
Affirmed.
E. H Seneff, L. F. Parker and James Orchard for appellants.
(1) The motion in arrest of judgment should have been sustained. The verdict of the commissioners was never reviewed by the court never set aside or affirmed. Under Revised Statutes 1899 section 1268, upon the filing of the report of the commissioners the clerk wherein the same is filed shall notify the party whose property is affected of the filing thereof, and the report of said commissioners may be reviewed by the court in which the proceedings are had on written exceptions filed by either party in the clerk's office within ten days after the service of the notice aforesaid, and the court shall make such order therein as right and justice may require, and may order a new appraisement on good cause shown. Such new appraisement shall, at the request of either party, be made by a jury under the supervision of the court, as in an ordinary case of inquiry of damages, etc. So, under that section, it is necessary for the court to review the report of the commissioners and to set the same aside on a proper showing. The finding of the commissioners appointed to appraise land to be condemned for railroad purposes is not conclusive upon the circuit court, but on written exceptions filed by either party the court may examine the evidence, and if the verdict of the commissioners was wrong, may set it aside. Bridge Co. v. Schabacker, 49 Mo. 555. In the case at bar no such inquiry was made and no order of the court was made setting aside the verdict of the commissioners, so the finding of the commissioners is still in force. Bridge Co. v. Ringe, 58 Mo. 491; St. Louis v. Lanigan, 97 Mo. 175; Railroad v. Richardson, 46 Mo. 456; Railroad v. McGrew, 113 Mo. 390. (2) In an action for damages it is not competent for a witness to state the sum which he thinks is the plaintiff's damage, because, even if the witness is an expert in the particular subject, he is liable to include in his general estimate elements of damages which the law does not recognize. Sale v. St. Louis, 152 Mo. 615; Hurt v. Railroad, 94 Mo. 255; Watkins v. Railroad, 44 Mo.App. 245; Suspensor v. Railroad, 120 Mo. 154. And to allow a witness to give his opinion as to the amount of damages sustained in a given case is, as a general rule, usurping the general province of the jury. Saline v. St. Louis, 152 Mo. 615; Railroad v. Knapp, Stout & Co., 160 Mo. 396; Railroad v. Shoemaker, 160 Mo. 425. (3) The instructions given on the part of the exceptor, C. E. McKinney, are erroneous, for the reason that they assume that the exceptor's land was damaged by reason of the locating of plaintiff's road over the same. That was one of the controverted questions before the jury. It was, therefore, an error to give said instructions. Railroad v. Stock Yards Co., 120 Mo. 541; Stone v. Hunt, 94 Mo. 475; Railroad v Knapp, Stout & Co., 160 Mo. 396.
Jno. M. Atkinson for respondents.
The first assignment of error by appellants is that the court erred in proceeding to trial without first setting aside the report of the commissioners, which is not supported by a single authority cited by appellants decided since the adoption of the present Constitution, but on the contrary the assignment of error has been held in a number of cases adverse to appellants' contention. The latest case cited by appellants, Railroad v. McGrew, 113 Mo. 393, holds the reverse to appellants' assignment. The exceptions in the McGrew case prayed for an assessment of damages by a jury (the same as respondent did in this case), which request was refused the railroad company, and the court held, speaking through Judge Macfarlane, that "sec. 4 of art. 12 of the Constitution, and sec. 2738 (now sec. 1268) of the statutes, entitled the corporation, when exercising the delegated right of eminent domain, to demand as a matter of constitutional right that the damages should be assessed by a jury," and stated further that, "since the trial of the case in the circuit court the disputed question has been decided in several cases by this court," and cited: Railroad v. Town-Site Co., 103 Mo. 451; Railroad v. Miller, 106 Mo. 458; Railroad v. Shambaugh, 106 Mo. 557; Railroad v. Fowler, 113 Mo. 458. The same question is found decided against appellants' contention in the case of Railroad v. Story, 96 Mo. 611. If the contention of appellants be true, that under the statute the report of the commissioners must first be set aside for cause before a jury is called to assess damages, and the trial court should refuse to set aside such report, then the statute would be in direct conflict with the constitutional right, and of course the statute must fall as was said by the court in the Story case, supra. The trial court below did not confirm the report of the commissioners as to exceptor, and hence it must have considered same set aside, even if such be a valid requirement. If a formal order of the court below setting aside the report of the commissioners be required, the matter was so treated by both appellants and respondents and such a formal requirement was waived and cannot now be urged for the first time in this court, as the attention of the lower court was not called to the same, either during the trial or in a motion for a new trial or in arrest, and hence we conclude that the first assignment of error is without any merit, and should be ruled against appellants.
OPINION
In Banc
This is an appeal in a proceeding by a railroad company, under the provisions of article 7, chapter 12, Revised Statutes 1899, to condemn a strip of land for its use through a number of tracts or parcels of land in Ripley county; one of which belonged to C. E. McKinney, the respondent herein, who, upon the coming in of the report of the commissioners assessing his damages at one hundred dollars, after notice, in due time, filed his written exceptions thereto, in which he asked that the report of the commissioners be set aside, and that his damages be assessed by a jury. Thereupon, in due course, a jury was impaneled, before whom the issues were tried and a verdict in his favor rendered, assessing his damages at seven hundred and fifty dollars, from which judgment, in due course, this appeal was taken.
1. By section 1268 of said article 7, it is provided that: "The report of said commissioners may be reviewed by the court in which the proceedings are had, on written exceptions, filed by either party in the clerk's office, within ten days after the service of the notice aforesaid; and the court shall make such order therein as right and justice may require, and may order a new appraisement, upon good cause shown."
On the record no formal order appears setting aside the report of the commissioners, and this is assigned as error. There is nothing in this assignment. On filing his exceptions the respondent had the constitutional right to have his damages assessed by a jury, and the court had no discretion in the matter. The calling a jury to assess his damages was such order "as right and justice required." [Art. 12 sec. 4, Const. 1875; Railroad v. McGrew, 113 Mo. 390; Railroad v. Story, 96 Mo. 611.]
2. It is next contended that the court erred in permitting witnesses for respondent to give their opinion as to the amount of the damages to respondent's land in answer to the following questions:
It is settled law in this State that persons shown to be acquainted with the value or damages to property may, in connection with the facts, state their opinion as to such value or damages. [Railroad v. Calkins, 90 Mo. 538 at 538-543; Railroad v. De Lissa, 103 Mo. 125 at 125-130; Railroad v. St. L. Union Stock Yards, 120 Mo. 541-550; Railroad v. Donovan, 149 Mo. 93 at 93-102; Railroad v. Shoemaker, 160 Mo. 425.]
The question in this case is but a paraphrase adapted to the facts thereof, of the question in the case last cited, in which it was held that the question correctly stated the basis for an opinion of the witness as to the amount of the damages. There is nothing in this assignment.
3. The third and last contention of appellant is, that the instructions given for respondent are erroneous in that they assume that his property had been damaged. This is a hypercriticism of the instruction and seems to be based upon the fact that the words, "if any," used in the first instruction, were not...
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