St. Louis v. Turner, 30742.

• Decision Date: 20 December 1932
• Docket Number: No. 30742.,30742.
• Citation: 55 S.W.2d 942
• Parties: THE CITY OF ST. LOUIS, Appellant, v. BERTHA C. TURNER ET AL.
• Court: Missouri Supreme Court

55 S.W.2d 942

THE CITY OF ST. LOUIS, Appellant, v. BERTHA C. TURNER ET AL.

No. 30742.

Supreme Court of Missouri.

Division One, December 20, 1932.

Appeal from Circuit Court of City of St. Louis. — Hon. Granville Hogan, Judge.

REVERSED AND REMANDED (with directions).

Julius T. Muench, G. Wm. Senn and Seward McKittrick, for appellant.

(1) A judgment for damages in condemnation can be affirmed only if supported by substantial evidence. St. Louis v. Gerhart Realty Co., 40 S.W. (2d) 664; St. Louis v. Smith, 30 S.W. (2d) 729; St. Louis v. Schopp, 30 S.W. (2d) 735. (2) Where part of respondent's evidence is inconsistent with the findings of the court the whole is not substantial evidence. St. Louis v. Smith, 30 S.W. (2d) 729; Southern Ill. & K. Railroad Co. v. Johnson, 321 Ill. 190, 151 N.E. 554; Palmer v. Harris County, 29 Tex. Civ. 340, 69 S.W. 229; Thomas v. Noonan, 133 App. Div. 460. (3) All of respondent's evidence must be considered in determining whether it supports the judgment. Southern Ill. & K. Railroad Co. v. Johnson, 321 Ill. 190, 151 N.E. 554; Palmer v. Harris County, 29 Tex. Civ. 340, 69 S.W. 229. (4) In condemnation cases an owner is not entitled to receive an award for buildings determined without regard for the value of the land; the inquiry must be directed to the amount of value which the buildings add over and above the land. 1 Nichols, Eminent Domain (2 Ed.) sec. 227, p. 694; 2 Lewis, Eminent Domain (3 Ed.) sec. 726, p. 1270; 10 R.C.L. sec. 124, p. 142; Hervey v. Providence, 47 R.I. 380, 133 Atl. 619; Devou v. Cincinnati, 162 Fed. 636; St. Johnsville v. Smith, 184 N.Y. 350, 77 N.E. 620; Blackwell's Island Bridge Approach, 198 N.Y. 84, 91 N.E. 278. (5) Where the undisputed evidence of both parties is that the buildings on the property are not adaptable to the land, testimony of a builder of the replacement cost and the physical depreciation is of no probative value and is incompetent, especially where no consideration is given to the land value in determining the amount of depreciation. 1 Nichols, Eminent Domain (2 Ed.) sec. 227, p. 694; 2 Lewis, Eminent Domain (3 Ed.) sec. 664, p. 1144; United R.E. Co. v. McDonald, 140 Mo. 613; Devou v. Cincinnati, 162 Fed. 633; Hervey v. Providence, 47 R.I. 380, 133 Atl. 618; Re Simmons, 130 App. Div. 353, affirmed 95 N.Y. 373; Jacksonville & S.E. Ry. Co. v. Walsh, 106 Ill. 256; New York Central v. Domphoff, 63 Misc. 211. Such testimony is admissible only in cases where the improvements are suitable to the site and the land value and their structural value represents a fairly proportionate enhancement of the market value of the land. Blackwell's Island Bridge Approach, 198 N.Y. 84, 91 N.E. 278; Hall v. Providence, 45 R.I. 169, 121 Atl. 66; McGaw v. Mayor, etc., of Baltimore, 131 Md. 433, 102 Atl. 545; Mayor, etc., of Baltimore v. Himmel, 107 Atl. 524; Applefeld v. Mayor, etc., of Baltimore, 134 Md. 528, 107 Atl. 347. (6) Evidence inadmissible because of a lack of probative values does not acquire value merely because it is introduced without objection; it cannot be considered by the appellate court in determining whether the evidence supports the judgment. Childers v. Pickenpaugh, 219 Mo. 435, 118 S.W. 453; Van Bibber v. Swift & Co., 286 Mo. 337, 228 S.W. 69; Nodaway County v. Williams, 199 S.W. 227; Moran v. Brown, 27 Mo. App. 491; Bartlett v. O'Donoghue, 72 Mo. 564; McMillan & Parker v. Ball & Gunning Milling Co., 190 Mo. App. 347; 1 Thompson on Trials (2 Ed.) sec. 691, p. 629; Minter Bros. v. South Kansas Railroad Co., 56 Mo. App. 289; Cook v. Eastland County, 260 S.W. 881; Sharp v. Baker, 22 Tex. 315; 23 C.J. sec. 1783, p. 40. (7) In condemnation cases under the St. Louis Charter the commissioners' report is not set aside merely because exceptions are filed. On the trial of exceptions the report of the commissioners is entitled to as much or even greater respect than the verdict of a jury. It can be set aside by the court only upon good cause shown. St. Louis Charter, Art. XXI, sec. 7; St. Louis v. Lanigan, 97 Mo. 178; St. Louis v. Brown, 155 Mo. 567; St. Louis v. Abeln, 170 Mo. 323; St. Louis v. Calhoun, 222 Mo. 55; St. Louis, etc., Railroad Co. v. Richardson, 45 Mo. 468; Hannibal Bridge Co. v. Schaubacker, 49 Mo. 558; St. Louis, etc., Railroad Co. v. Almeroth, 62 Mo. 343; Kansas City, etc., Railroad Co. v. Campbell, 62 Mo. 585; Fitzhugh v. Railroad Co., 107 Va. 158, 59 S.W. 415; Appeal of Piper, 32 Cal. 539; Atchison, T. and S.F. v. Schneider, 127 Ill. 144; Hannah v. Roanoke, 139 S.E. 307; 20 C.J. sec. 429, p. 1043; 1 Lewis, Eminent Domain (3 Ed.) sec. 776, p. 1379. (a) Under the Missouri Constitution the damages in condemnation cases by municipalities may be determined either by a jury or by a board of commissioner. In St. Louis they are determined by commissioners. Const. of Mo., Art. II, Sec. 21; St. Louis Charter, Art. XXI, Secs. 1-7; Kansas City v. Vineyard, 128 Mo. 81; St. Louis v. Brown, 155 Mo. 567.

Anthony Hochdoerfer for respondent.

(1) An objection that there is no substantial evidence to support the verdict cannot be raised on appeal when no objection was made at the close of all the evidence in the nature of a demurrer to the evidence. Junge v. Pehl, 240 S.W. 278; Doody v. California Woolen Mills, 216 S.W. 531; Hallender v. Jefferson Mut. Fire Ins. Co., 218 S.W. 418; Williams v. Barnes, 253 S.W. 807. (a) The sufficiency of evidence cannot be complained of on appeal where not complained of in the motion for a new trial. Brun v. Dumey, 2 Mo. 125; Polk v. State, 4 Mo. 544; Rhodes v. White, 11 Mo. 623; Putnam v. Railroad Co., 22 Mo. App. 580. (2) The appellant did not specifically except to the report of the commissions upon the grounds that the commissioners adopted an erroneous principle in making it. The question whether or not damages were awarded by the commissioners upon a wrong theory is a matter of exception and cannot be considered in the absence of a specific objection to the report properly preserved in bill of exceptions. (3) The finding of the court as to the damages sustained by respondent was not excepted to at the trial as founded upon a wrong theory and cannot be reviewed on appeal. (a) Where the parties have submitted the issue to the decision of the court below, without a jury, the Supreme Court will not review its finding of the facts, unless exceptions be taken on the trial. Redman v. Adams, 65 S.W. 300; Leith v. The Pride of the West, 16 Mo. 181; Steele v. Johnson, 69 S.W. 1067. (b) Where an objection that there was no evidence to sustain a finding was not interposed in the trial court nor continued in the motion for a new trial, it is not properly before the court on appeal. Johnson v. Simmons, 61 Mo. App. 400. (4) The record discloses that the appellant failed to request a declaration of law excluding evidence of structural value from the consideration of the court in making its findings. (a) Where no instructions or declarations of law are requested at the trial, the judgment will not be reversed if there is substantial evidence to support it on any theory within the issues. Meridian Lbr. Co. v. The Lowre Lbr. Co., 229 S.W. 267; Olive St. Bank v. Phillips, 179 Mo. App. 488, 162 S.W. 721; Christman v. Scholl, 177 Mo. App. 58, 164 S.W. 131. (b) The appellate court will not review findings of fact where no instructions are asked or given. Rausch v. Maschell, 192 Mo. 293, 913 S.W. 101; Sutter v. Raeder, 149 Mo. 307, 50 S.W. 813; Jordan v. Davis, 172 Mo. 599, 72 S.W. 686. (5) The structural value of respondent's buildings was within the issues and necessarily had probative value on the submission of the case. Where the structural or replacement value of a building is admitted in evidence without objection in condemnation proceedings, such evidence injects into the case a theory within the issues made by the pleadings and its tendency to support such theory determines its probative value without reference to the question as to whether or not it is incompetent as evidence under some other theory. Meridian Lbr. Co. v. The Lowre Lbr. Co., 229 S.W. 267; Olive St. Bank v. Phillips, 179 Mo. App. 488, 162 S.W. 721; Christman v. Scholl, 177 Mo. App. 58, 164 S.W. 131. (6) The parties on appeal must adhere to the theory upon which the case was tried in the court below. Appellant having tried the case in the court below upon the theory that structural value was an issuable fact, the finding of the court thereon is conclusive on appeal, even though the evidence may preponderate in its favor. Shelton v. Franklin, 224 Mo. 342, 123 S.W. 1084; Grimes v. Cole, 133 Mo. App. 522, 113 S.W. 685. (7) There is substantial evidence to support the verdict. (a) The report of the commissioners makes a prima facie case. St. Louis v. Abeln, 170 Mo. 318; St. Louis v. Calhoun, 222 Mo. 44; St. Louis v. Brown, 155 Mo. 545; Hannibal Bridge Co. v. Schaubacker, 49 Mo. 468; St. Louis, etc., Railroad Co. v. Richardson & Co., 45 Mo. 468; St. Louis, etc., Railroad Co. v. Almeroth, 62 Mo. 343; Kansas City, etc., Railroad Co. v. Campbell, 62 Mo. 585. (b) A prima facie case, once made, continues throughout the trial; the occurrence of undisputed testimony during the progress of the trial does not deprive the court of its province to find the facts. Gannon v. Laclede Gas Light Co., 46 S.W. 972.

RAGLAND, J.

This is a proceeding in condemnation. It was instituted by appellant on September 8, 1919, pursuant to Ordinance No. 30,259, which provided for the widening of Twelfth Street from Spruce Street to Market Street. Such widening called for the appropriation of forty feet off the ends of the lots fronting west on Twelfth Street as theretofore established. The street has long since been widened, opened and established in conformity with the ordinance; this proceeding has to do merely with the assessments of damages and benefits with respect to two pieces of property.

One of the properties affected by the condemnation had a frontage of twenty-one feet and six...